CHAPTER 26-7A

JUVENILE COURT

26-7A-1    Definition of terms.

26-7A-2    Original jurisdiction of dependency and delinquency proceedings--Effect of custody award in prior divorce proceedings--Application of Indian Child Welfare Act.

26-7A-3    Venue of dependency and delinquency proceedings--Transfer of proceedings.

26-7A-4    No costs or fees assessed against abused or neglected child--Assessment to parents or guardian--Fees permitted against supervised or delinquent child.

26-7A-5    Proceedings in best interest of child.

26-7A-6    Liberal construction for protection of child.

26-7A-7    Interference with court orders as contempt--Punishment.

26-7A-8    Court services officers--Appointment--Duties.

26-7A-9    State's attorneys to represent state and Department of Social Services--Exemption.

26-7A-10    Preliminary investigation by state's attorney--Authorized procedure on basis of investigation.

26-7A-11    Requirements for referral for informal adjustment or action.

26-7A-11.1    Criteria for referral for informal adjustment or action.

26-7A-12    Temporary custody by law enforcement officer or court services officer without court order.

26-7A-12.1    Child in possession of firearms on school property may be taken into temporary custody.

26-7A-13    Court-ordered temporary custody--Noticed hearing--Without noticed hearing.

26-7A-13.1    Hearing by intake officer.

26-7A-13.2    Delivery of juvenile to temporary custodian.

26-7A-14    Temporary care of child by caretaker designated by court--Limitation of temporary custody--Release.

26-7A-15    Notice to parents, guardian, or custodian of child taken into temporary custody--Notice of hearing--Information to Indian custodian or designated tribal agent--Failure to notify.

26-7A-15.1    Proceedings under certain chapters to which the Indian Child Welfare Act applies--Procedures.

26-7A-15.2    Form of notice to parent, custodian, or Indian tribe of child custody proceeding.

26-7A-15.3    Designated tribal agent defined.

26-7A-16    Child held until released by court.

26-7A-17    Notice to state's attorney of child taken into temporary custody--Written report--Notice to court.

26-7A-18    Temporary custody hearing--Best interests of child--Conducted telephonically.

26-7A-19    Options of court following temporary custody hearing for abused or neglected child.

26-7A-19.1    Preference for placement of abused or neglected child with relatives after hearing.

26-7A-19.2    Action by division when relative desires to take temporary or permanent placement of abused or neglected child.

26-7A-20    Release of child in need of supervision after temporary custody hearing--Exceptions.

26-7A-21    Release of delinquent child after temporary custody hearing--Exceptions.

26-7A-22    Temporary custody not an arrest.

26-7A-23    Temporary care, shelter, or detention facilities maintained by board of county commissioners.

26-7A-24    Intercounty contracts for use of facilities.

26-7A-25    County to care for children pending adjudication.

26-7A-26    Detention in jail with adult prisoners prohibited for abused or neglected child--Temporary detention--Detention with adults for child transferred to adult court.

26-7A-27    Police records of children taken into temporary custody--Confidentiality.

26-7A-28    Release of information on identity of child prohibited except by court order or when child adjudicated delinquent offender.

26-7A-29    Release of information to persons, agencies, or facilities with legitimate interest in child.

26-7A-30    Rights of child and parents, guardian, or custodian--Representation by attorney--Motion for new hearing--Appeal.

26-7A-31    Court appointed attorney--Compensation.

26-7A-32    Lien against property of parents for payment of court-appointed attorney--Exceptions--Limitation.

26-7A-32.1    Definition of terms regarding competency of juvenile.

26-7A-32.2    Incompetent juvenile not subject to chapters 26-8B or 26-8C.

26-7A-32.3    Raising issue of competency.

26-7A-32.4    Competency examination.

26-7A-32.5    Suspension of proceeding pending competency determination.

26-7A-32.6    Examiner's report.

26-7A-32.7    Competency determination hearing.

26-7A-32.8    Burden of proving competence.

26-7A-32.9    Statements by juvenile during competency evaluation not admissible.

26-7A-32.10    Competency may be revisited upon transfer to adult court.

26-7A-32.11    Procedure upon finding that juvenile not competent to proceed but probably will be competent in foreseeable future.

26-7A-32.12    Procedure upon finding that juvenile not competent to proceed and probably will not be competent in foreseeable future.

26-7A-33    Priority in scheduling hearings and trials.

26-7A-34    Conduct of hearings.

26-7A-35    Record of hearings.

26-7A-36    Hearings closed unless court compelled otherwise--Exceptions.

26-7A-36.1    Attendance at juvenile hearings by crime victims.

26-7A-37    Persons authorized to inspect or receive copies of records of court proceedings.

26-7A-38    Protection of identity of witnesses--Violation creates cause of action for civil damages--Contempt.

26-7A-39    Compulsory process for attendance of defense witnesses.

26-7A-40    Witness fees and expenses.

26-7A-41    Physical and mental health examination--Placement in suitable facility--Report.

26-7A-42    Court-ordered protection, support or dental, medical or surgical treatment--Parental consent--Costs.

26-7A-43    Petition alleging abused or neglected child, child in need of supervision or delinquent child--Required information--Verification.

26-7A-44    Summons--Unknown parties--Contents.

26-7A-45    Failure to appear before the court--Contempt.

26-7A-46    Hearing on petition upon waiver of notice.

26-7A-47    Service of summons.

26-7A-48    Publication of summons--Affidavit or certificate of publication.

26-7A-49    Warrant issued against parents, guardian, or custodian.

26-7A-50    Apprehension of child on warrant--Promise of parent, guardian, or custodian to produce child at hearing.

26-7A-51    Failure to produce child at hearing as contempt.

26-7A-52    Bond to secure court appearance of child in need of supervision or delinquent child.

26-7A-53    Appearance and answer by interested parties--Failure as default--Petition taken as admitted by default.

26-7A-54    Advisory hearing before adjudicatory hearing.

26-7A-55    Petition admitted to by all parties--Dispositional hearing--Petition not admitted to--Adjudicatory hearing--Interim order for temporary custody.

26-7A-56    Rules of procedure and evidence apply to adjudicatory hearings--Rules for other hearings prescribed by court.

26-7A-57    Discovery--"Respondent" defined--"Child" defined.

26-7A-58    Inspection by respondent or child of statements made by any respondent or child.

26-7A-59    Request for copy of prior order of adjudication or final decree of disposition.

26-7A-60    Right to inspect, copy, or photograph books, papers, documents, photographs, tangible objects, buildings, or places.

26-7A-61    Right of respondent or child to inspect, copy, or photograph results or reports of physical or mental examinations and scientific tests or experiments.

26-7A-62    Inspection of internal documents of state prohibited--Exceptions--Inspection of statements of state's witnesses prohibited--Exceptions.

26-7A-63    Statement of state's witness or prospective witness not subject to discovery until witness has testified.

26-7A-64    Examination upon request of statement by state's witness relating to subject matter of witness' testimony.

26-7A-65    Excise of nonsubject matter related material from witness' statement to be produced--Appeal.

26-7A-66    Witness' testimony struck from record upon state's attorney's election not to deliver statement to respondent or child.

26-7A-67    "Statement" defined.

26-7A-68    State's attorney may inspect, copy, or photograph documents or objects in possession of respondent or child.

26-7A-69    State's attorney's right to inspect, copy, or photograph physical or mental examination results and reports of scientific tests or experiments.

26-7A-70    State's attorney prohibited from inspection of internal documents made by respondent or child or attorneys in connection with case.

26-7A-71    Notice of additional evidence.

26-7A-72    Court order upon discovery motion.

26-7A-73    Failure of party to comply with discovery provisions.

26-7A-74    Depositions--"Respondent" defined--"Child" defined.

26-7A-75    Depositions only as provided by statute or rule--Motion by party due to exceptional circumstances.

26-7A-76    Notice of deposition--Right of child or respondent to be present--Waiver.

26-7A-77    Manner of taking and filing deposition--Examination and cross examination.

26-7A-78    Deposition enclosed, sealed, and endorsed--Transmitted to county clerk.

26-7A-79    Use of depositions.

26-7A-80    Objections to deposition testimony or evidence--Basis.

26-7A-81    Deposition by agreement of parties not precluded.

26-7A-82    Adjudicatory hearing following advisory hearing--Support of evidence.

26-7A-83    Evidence considered at adjudicatory hearing--Appearance of party preparing reports and materials used as evidence.

26-7A-84    Order to amend petition.

26-7A-85    Child with mental illness or intellectual disability--Suspension of hearing--Examination.

26-7A-86    Final order when allegations not supported by evidence--Additional findings and conclusions for abused or neglected child--Appeal.

26-7A-87    Adjudication subject to intermediate appeal--Dispositional proceedings--Interim dispositional decree.

26-7A-88    Examination, investigation, and reports of adjudicated child before final disposition.

26-7A-89    Continuance of case--Custody of child pending disposition--Term of continuance.

26-7A-90    Evidence heard at dispositional hearing--Interim decree--Final decree.

26-7A-91    Notice of entry of order of adjudication or final decree--Service of publication.

26-7A-92    Guardian of placed child.

26-7A-93    Placement subject to availability of space.

26-7A-93.1    26-7A-93.1. Repealed by SL 1996, ch 172, § 7

26-7A-94    Provisions for payment of custodial care costs.

26-7A-95    Parents' duty to support child--Costs of custodial care payable on demand.

26-7A-96    Acceptance and expenditure of additional funds for custodial care costs.

26-7A-97    Order or decree of guardianship of child--Certified copy as authority for custody--Social studies, clinical reports, and other information transmitted with order.

26-7A-98    Order for payment of, or reimbursement for, support to guardian or conservator or institution--Reasonable payment--Security and enforcement of order--Modification.

26-7A-99    Order of wage assignment for support of child--Discovery of employment--Disobedience as contempt.

26-7A-100    Conservatorship of estate of child.

26-7A-101    Period of continuation of guardianship or conservatorship--Application for new guardian or conservator, restoration to parents or discharge of guardian or conservator.

26-7A-102    Jurisdiction of court.

26-7A-103    Court order for report by guardian or institution.

26-7A-104    Review dispositional hearing to remove guardian or institution or restore child to parents.

26-7A-105    Child not disqualified from public office, civil service, or military service--Not a criminal conviction.

26-7A-106    Proceedings not admissible in criminal or civil action against child.

26-7A-107    Order of protection--Authorized provisions--Termination, modification or extension of order.

26-7A-107.1    Provisions for violation of order of protection.

26-7A-107.2    Violation of order of protection as a misdemeanor.

26-7A-108    Modifying or setting aside order or decree--Hearing required on probation violation or change in legal custody.

26-7A-108.1    Suspension of probationary period under certain conditions.

26-7A-109    Petition for modification or termination of custody decree on change of circumstances.

26-7A-110    Petition for new hearing on ground of new evidence.

26-7A-111    Interstate compacts not affected by provisions.

26-7A-112    Rules of procedure govern appeals--Notice to attorney general.

26-7A-113    Sealing records in action involving abused or neglected child--Inspection.

26-7A-114    Sealing records in action involving child in need of supervision--Inspection.

26-7A-115    Sealing records in action involving delinquent child--Inspection.

26-7A-115.1    Victim of human trafficking or sexual exploitation--Expungement of delinquency record.

26-7A-116    Distribution of copies of order sealing records--Inspection of sealed records.

26-7A-117    Maximum age for which committed.

26-7A-118    Parent or guardian required to appear at certain hearings.

26-7A-119    26-7A-119. Repealed by SL 1996, ch 172, § 15

26-7A-120    Confidentiality of records.

26-7A-121    26-7A-121. Repealed by SL 1996, ch 172, § 16

26-7A-122    Court discharge of child from Department of Corrections--Restoration to parent, guardian, or custodian or change in placement--Resisting discharge.

26-7A-123    Department of Corrections to file periodic report on child in custody--Contents of report.

26-7A-124    Judicial review of report--Court may issue show cause order against department.

26-7A-125    Graduated sanctions and incentives program for responding to probation violations.

26-7A-126    Law enforcement treatment as juvenile cited violation--Procedure--Report to state's attorney.

26-7A-127    Action by state's attorney for juvenile cited violation.

26-7A-128    Admission or denial of alleged juvenile cited violation--Procedure.

26-7A-129    Judgment on juvenile cited violation.

26-7A-A    APPENDIX OF FORMS

26-7A-1. Definition of terms.

Terms used in this chapter and in chapters 26-8A, 26-8B, and 26-8C mean:

(1)    "Abused or neglected child," a child as defined in § 26-8A-2;

(2)    "Adjudicatory hearing," a hearing to determine whether the allegations of a petition alleging that a child is abused or neglected are supported by clear and convincing evidence or whether the allegations of a petition alleging a child to be in need of supervision or a delinquent are supported by evidence beyond a reasonable doubt;

(3)    "Adult," a person eighteen years of age or over, except any person under twenty-one years of age who is under the continuing jurisdiction of the court or who is before the court for an alleged delinquent act committed before the person's eighteenth birthday;

(4)    "Advisory hearing," the initial hearing conducted by the court to inform the child and the child's parents, guardian, custodian, or other interested parties of their statutory and constitutional rights;

(5)    "Association," an association, institution, or corporation which includes in its purposes the care or disposition of children coming within the provisions of this chapter or chapter 26-8A, 26-8B, or 26-8C;

(6)    "Child," a person less than eighteen years of age and any person under twenty-one years of age who is under the continuing jurisdiction of the court or who is before the court for an alleged delinquent act committed before the person's eighteenth birthday;

(7)    "Child in need of supervision," a child as defined in § 26-8B-2;

(8)    "Commit," to transfer custody of a person;

(9)    "Conservator," a conservator of a child as defined in § 29A-1-201;

(10)    "Court" or "juvenile court," the circuit court;

(11)    "Custodian," any foster parent, employee of a public or private residential home or facility, other person legally responsible for a child's welfare in a residential setting, or person providing in-home or out-of-home care; for purposes of this definition, out-of-home care means any day care as defined in §§ 26-6-14, 26-6-14.1, and 26-6-14.8;

(12)    "Delinquent child," a child as defined in § 26-8C-2;

(13)    "Department of Social Services" or "department," the South Dakota Department of Social Services;

(14)    "Deprivation of custody," transfer of custody of a child by the court from the child's parents, guardian, or other custodian to another person, agency, department, or institution;

(15)    "Detention," the temporary custody of a child in secured physically restricting facilities for children, sight and sound separated from adult prisoners;

(16)    "Detention facility," a secured, physically- restricting facility designed, staffed, and operated for children and separated by sight and sound from adult prisoners or a facility for children in the same building or secure perimeter as an adult jail or lockup, where children are sight and sound separated from adult prisoners, where staff in the detention facility are trained and certified by the entity operating facility to work with children, and the facility had been approved as a collocated facility by the Office of Juvenile Justice and Delinquency Prevention;

(17)    "Dispositional hearing," a hearing after adjudication at which the court makes an interim or final decision in the case;

(18)    "Guardian," a guardian of a child as defined in § 29A-1-201;

(19)    "Guardian ad litem," a representative of a child as defined in subdivision 15-6-17(c), including a court-appointed special advocate for a child;

(20)    "Intake officer," a judge of a circuit court or the court's designee who may not be a court services officer, law enforcement officer, or prosecuting attorney. For purposes of chapters 26-7A, 26-8A, 26-8B, and 26-8C, intake officers may administer oaths or affirmations as provided by chapter 18-3;

(21)    "Minor," a person who has not reached his or her eighteenth birthday;

(22)    "Parents," biological or adoptive parents of a child, including either parent, any single or surviving parent, and any custodial or noncustodial parent, jointly or severally;

(23)    "Protective supervision," a legal status created by court order under which an alleged or adjudicated abused or neglected child is permitted to remain in the home of the child's parents, guardian, or custodian or is placed with a relative or other suitable person and supervision and assistance is provided by the court, Department of Social Services, or another agency designated by the court;

(24)    "Qualified mental health professional," a person as defined in § 27A-1-3;

(25)    "Shelter," a physically-unrestricting home or facility for temporary care of a child;

(26)    "Temporary care," the care given to a child in temporary custody;

(27)    "Temporary custody," the physical and legal control of a child prior to final disposition.

Source: SDC 1939, § 43.0301 as enacted by SL 1968, ch 164, § 1; SL 1971, ch 166, § 1; SL 1973, ch 163, § 5; SL 1982, ch 200, § 1; SL 1989, ch 226, § 1; SL 1989, ch 228, § 1; SL 1990, ch 30, § 6; SL 1991, ch 217, §§ 10B, 85B; SDCL Supp, § 26-8-1; SL 1992, ch 183, § 4; SL 1993, ch 213, § 120; SL 1997, ch 158, § 1; SL 2001, ch 137, § 1; SL 2003, ch 149, § 1.

26-7A-2. Original jurisdiction of dependency and delinquency proceedings--Effect of custody award in prior divorce proceedings--Application of Indian Child Welfare Act.

The circuit court has original jurisdiction in all proceedings under this chapter and chapters 26-8A, 26-8B, and 26-8C.

If a child custody award has been made in a circuit court in a divorce action or other proceeding and the jurisdiction of the divorce court is continuing, a circuit court may nevertheless acquire jurisdiction in proceedings involving the same child if the child is alleged to be abused, neglected, in need of supervision, delinquent, or otherwise comes within the jurisdiction set forth in this section.

Due regard shall be afforded to the Indian Child Welfare Act (25 U.S.C. §§ 1901-1963) if that act is applicable.

Source: SDC 1939, § 43.0302; SL 1968, ch 164, § 2; SL 1991, ch 217, § 1; SDCL, § 26-7-1.

26-7A-3. Venue of dependency and delinquency proceedings--Transfer of proceedings.

Proceedings in actions under this chapter or chapter 26-8A, 26-8B, or 26-8C shall be commenced in the county in which the child resides or is present or in which an alleged violation of law, ordinance, or court order occurred.

Before or after commencement of proceedings in a county other than the county of the child's residence and prior to adjudication, the court in which the proceedings are initiated may, on motion of the state's attorney, transfer the proceedings to the court of the county of the child's residence if the initial court finds that a transfer would be in the best interests of the child. If the proceedings are transferred, the initial court making the transfer shall transmit all records, files, and reports to the receiving court and the receiving court shall proceed as if the proceedings had been originally commenced in that court.

Source: SL 1968, ch 164, § 3; SL 1991, ch 217, § 2B; SDCL, § 26-7-1.1.

26-7A-4. No costs or fees assessed against abused or neglected child--Assessment to parents or guardian--Fees permitted against supervised or delinquent child.

No costs or fees may be assessed against any abused or neglected child but may be assessed against the child's parents, guardian, or custodian or other responsible party. Costs and fees permitted by law may be assessed or taxed against any child adjudicated to be a child in need of supervision or a delinquent child and against the child's parents, guardian, custodian, or other responsible party.

Source: SDC 1939, § 43.0329; SL 1984, ch 12, § 28; SL 1991, ch 217, § 3B; SDCL, § 26-7-2.

26-7A-5. Proceedings in best interest of child.

Proceedings under this chapter and chapters 26-8A, 26-8B, and 26-8C shall be in the best interests of the child.

Source: SDC 1939, § 43.0304; SL 1968, ch 164, § 4; SL 1991, ch 217, § 4B; SDCL, § 26-7-11; SL 1994, ch 213.

26-7A-6. Liberal construction for protection of child.

Provisions of this chapter and chapters 26-8A, 26-8B, and 26-8C shall be liberally construed in favor of the child, the child's parents, and the state for the purposes of protecting the child from abuse or neglect by the child's parents, guardian, or custodian and for the purposes of affording guidance, control, and rehabilitation of any child in need of supervision or any delinquent child.

Source: SDC 1939, § 43.0409 (2); SL 1991, ch 217, § 5B; SDCL, § 26-8-2.

26-7A-7. Interference with court orders as contempt--Punishment.

Any person who interferes or fails to comply with any order of the court affecting the direction or disposition of any child made pursuant to provisions of this chapter or chapter 26-8A, 26-8B, or 26-8C may be held in contempt of court and is subject to punishment as for contempt of court.

Source: SDC 1939, § 43.0332; SL 1990, ch 198, § 2; SL 1991, ch 217, § 6B; SDCL Supp, § 26-7-13.

26-7A-8. Court services officers--Appointment--Duties.

The presiding judge in each judicial circuit may appoint and employ qualified persons to serve as court services officers subject to the rules of the Supreme Court. Court services officers shall have such duties and responsibilities as directed by the Supreme Court.

Source: SDC 1939, § 43.0324; SL 1947, ch 190; SL 1951, ch 223; SL 1955, ch 154; SL 1957, ch 207; SL 1959, ch 245; SL 1961, ch 215; SL 1963, ch 246; SL 1968, ch 165, § 1; SL 1974, ch 177, § 5; SL 1974, ch 178, § 1; SL 1975, ch 162, § 15; SL 1985, ch 33, § 29; SL 1991, ch 217, § 7B; SDCL Supp, § 26-7-7.

26-7A-9. State's attorneys to represent state and Department of Social Services--Exemption.

The state's attorney shall represent the state in all proceedings brought under this chapter and chapter 26-8A, 26-8B, or 26-8C. The state's attorney shall also represent the Department of Social Services in any proceedings brought under this chapter or chapter 26-8A unless the Department of Social Services has selected a separate attorney and has so informed the concerned state's attorney and the court.

Source: SDC 1939, § 43.0309 as added by SL 1968, ch 164, § 7; SL 1991, ch 217, § 11B; SDCL, § 26-8-22.4.

26-7A-10. Preliminary investigation by state's attorney--Authorized procedure on basis of investigation.

If a state's attorney is informed by a law enforcement officer or any other person that a child is, or appears to be, within the purview of this chapter and chapter 26-8A, 26-8B, or 26-8C, the state's attorney shall make a preliminary investigation to determine whether further action shall be taken. On the basis of the preliminary investigation, the state's attorney may:

(1)    Decide that no further action is required;

(2)    If the report relates to an apparent abused or neglected child and if additional information is required, refer the matter to the Department of Social Services for further investigation and recommendations;

(3)    If the report relates to a juvenile cited violation, proceed on the citation;

(4)    If the report relates to an apparent child in need of supervision, an apparent delinquent child, or a juvenile cited violation, refer the matter to a court services officer for any informal adjustment to the supervision of the court that is practicable without a petition or refer the matter to a court-approved juvenile diversion program for any informal action outside the court system that is practicable without the filing of a petition; or

(5)    File a petition to commence appropriate proceedings in any case that the youth does not meet the criteria provided in § 26-7A-11.1.

Source: SDC 1939, § 43.0304 as added by SL 1968, ch 164, § 4; SL 1977, ch 207; SL 1985, ch 213, § 1; SL 1991, ch 217, § 12B; SDCL Supp, § 26-8-1.1; SL 2015, ch 152, § 4; SL 2017, ch 115, § 1, eff. Mar. 13, 2017.

26-7A-11. Requirements for referral for informal adjustment or action.

A report of a preliminary investigation involving any apparent child in need of supervision, any apparent delinquent child, or any juvenile cited violation, may be referred to a court services officer for informal adjustment or to a court-approved juvenile diversion program for informal action pursuant to subdivision 26-7A-10(4) only if:

(1)    The child and the child's parents, guardian, or other custodian were informed of their constitutional and legal rights, including being represented by an attorney at every stage of the proceedings if a petition is filed;

(2)    The facts are admitted and establish prima facie jurisdiction; and

(3)    Written consent is obtained from the child's parents, guardian, or custodian and from the child if the child is of sufficient age and understanding. Efforts to effect informal adjustment or informal action may extend no longer than four months from the date of the consent.

The state's attorney may include in the referral to a court-approved juvenile diversion program a requirement that restitution as defined in subdivision 23A-28-2(4) be imposed as a condition of the diversion program.

Source: SL 1985, ch 213, § 2; SL 1991, ch 217, § 13B; SDCL Supp, § 26-8-1.2; SL 2008, ch 134, § 1; SL 2015, ch 152, § 2; SL 2016, ch 146, § 6, eff. Mar. 25, 2016; SL 2017, ch 115, § 2, eff. Mar. 13, 2017.

26-7A-11.1. Criteria for referral for informal adjustment or action.

Any apparent child in need of supervision or any apparent delinquent child shall be referred for informal adjustment or informal action pursuant to subdivision 26-7A-10(4) if the following criteria are met:

(1)    The child has no prior adjudications;

(2)    The child has had no informal adjustment or informal action within the last twelve months;

(3)    The child is an apparent child in need of supervision pursuant to § 26-8B-2 or an apparent delinquent pursuant to § 26-8C-2 and the alleged conduct constitutes a misdemeanor;

(4)    The child's alleged conduct did not include use of violence or force against another; and

(5)    All of the requirements in § 26-7A-11 are met.

If the state's attorney has good cause to believe that informal adjustment or informal action is insufficient to meet the purposes of this chapter and chapters 26-8B and 26-8C, the state's attorney may file a delinquency or child in need of supervision petition pursuant to subdivision 26-7A-10(5). The petition shall include notice of the departure from informal adjustment or informal action and notice to the child of the child's right to move for informal adjustment or informal action. Upon motion of the child and upon a finding that no good cause exists, the court may refer the child to informal adjustment or informal action pursuant to subdivision 26-7A-10(4).

Source: SL 2015, ch 152, § 3; SL 2017, ch 116, § 1.

26-7A-12. Temporary custody by law enforcement officer or court services officer without court order.

A child may be taken into temporary custody by a law enforcement officer without order of the court:

(1)    If the child is subject to arrest under the provisions of §§ 23A-3-2 and 23A-3-4;

(2)    If the child is abandoned or seriously endangered in the child's surroundings or is seriously endangering others and immediate removal of the child appears to be necessary for the child's protection or for the protection of others;

(3)    If there are reasonable grounds to believe the child has run away or escaped from the child's parents, guardian, or custodian;

(4)    If the officer reasonably believes that temporary custody is warranted because there exists an imminent danger to the child's life or safety and there is no time to apply for a court order and the child's parents, guardian, or custodian refuse an oral request for consent to the child's removal from their custody or the child's parents, guardian, or custodian are unavailable; or

(5)    If the child is under the influence of alcohol, inhalants, or a controlled drug or substance.

A court services officer may take the child into temporary custody without order of the court if the child is under the continuing jurisdiction of the court.

Source: SDC 1939, § 43.0320 as enacted by SL 1968, ch 164, § 14; SL 1979, ch 171, § 1; SL 1991, ch 217, § 16B; SDCL, § 26-8-19.1; SL 1995, ch 148, § 1; SL 1996, ch 172, § 1.

26-7A-12.1. Child in possession of firearms on school property may be taken into temporary custody.

A child alleged to have violated § 13-32-7 may be taken into temporary custody by a law enforcement officer who shall immediately notify an intake officer who shall conduct a hearing pursuant to § 26-7A-13.

Source: SL 1999, ch 88, § 2.

26-7A-13. Court-ordered temporary custody--Noticed hearing--Without noticed hearing.

The court may order temporary custody of any child within the jurisdiction of the court during any noticed hearing. Without noticed hearing, the court or an intake officer may immediately issue a written temporary custody directive in the following instances on receipt of an affidavit or, in the absence of a written affidavit when circumstances make it reasonable, on receipt of sworn oral testimony communicated by telephone or other appropriate means:

(1)    On application by a state's attorney, social worker of Department of Social Services, or law enforcement officer respecting an apparent, alleged, or adjudicated abused or neglected child stating good cause to believe as follows:

(a)    The child is abandoned or is seriously endangered by the child's environment; or

(b)    There exists an imminent danger to the child's life or safety and immediate removal of the child from the child's parents, guardian, or custodian appears to be necessary for the protection of the child;

(2)    On application by a state's attorney, court services officer, or law enforcement officer respecting an apparent, alleged, or adjudicated child in need of supervision or delinquent child stating good cause pursuant to § 26-8B-3 or 26-8C-3, as applicable, to believe as follows:

(a)    The child seriously endangers others or there is need for protection of the child; or

(b)    The child has run away or escaped from the child's parents, guardian, or custodian.

Source: SL 1991, ch 217, § 17; SL 1995, ch 148, § 2; SL 1996, ch 172, § 2; SL 1998, ch 158, § 1.

26-7A-13.1. Hearing by intake officer.

Upon taking a child into temporary custody pursuant to § 26-7A-12, the law enforcement officer or court service officer shall immediately notify an intake officer who shall conduct a hearing pursuant to § 26-7A-13.

Source: SL 1992, ch 183, § 15; SL 1995, ch 148, § 3; SL 1996, ch 172, § 3.

26-7A-13.2. Delivery of juvenile to temporary custodian.

The law enforcement officer or court service officer taking a juvenile into custody shall deliver the juvenile to the temporary custodian as directed by the court or intake officer.

Source: SL 1992, ch 183, § 19.

26-7A-14. Temporary care of child by caretaker designated by court--Limitation of temporary custody--Release.

An apparent abused or neglected child taken into temporary custody and not released to the child's parents, guardian, or custodian may be placed in the temporary care of the Department of Social Services, foster care, or a shelter as designated by the court to be the least restrictive alternative for the child. A child apparently in need of supervision or an apparent delinquent child taken into temporary custody and not released to the child's parents, guardian, or custodian may be placed in foster care, shelter, or detention as designated by the court to be the least restrictive alternative for the child. The temporary caretaker of the child shall promptly notify the state's attorney of the child's placement.

No child may be held in temporary custody longer than forty-eight hours, or twenty-four hours pursuant to § 26-8B-3, excluding Saturdays, Sundays, and court holidays, unless a temporary custody petition for an apparent abuse or neglect case or other petition has been filed, the child is within the jurisdiction of the court and the court orders longer custody during a noticed hearing or a telephonic hearing.

The court may at any time order the release of a child from temporary custody without holding a hearing, either with or without restriction or condition or upon written promise of the child's parents, guardian, or custodian regarding the care and protection of an apparent abused or neglected child or regarding custody and appearance in court of an apparent child in need of supervision or an apparent delinquent child at a time, date, and place to be determined by the court.

Provisions of this chapter on temporary custody do not abrogate or limit the authority of the court to order temporary custody of any child during any noticed hearing after an action has been commenced.

Source: SDC 1939, § 43.0309 as added by SL 1968, ch 164, § 7; SL 1979, ch 171, § 5A; SL 1989, ch 228, § 2; SL 1991, ch 217, § 18B; SDCL Supp, § 26-8-23.1; SL 1992, ch 184; SL 1994, ch 219, § 4; SL 2008, ch 135, § 1.

26-7A-15. Notice to parents, guardian, or custodian of child taken into temporary custody--Notice of hearing--Information to Indian custodian or designated tribal agent--Failure to notify.

The officer or party who takes a child into temporary custody, with or without a court order, except under a court order issued during a noticed hearing after an action has been commenced, shall immediately, without unnecessary delay in keeping with the circumstances, inform the child's parents, guardian, or custodian of the temporary custody and of the right to a prompt hearing by the court to determine whether temporary custody should be continued. If the child's parents, guardian, or custodian cannot be located after reasonable inquiry, the officer or party taking temporary custody of the child shall report that fact and the circumstances immediately to the state's attorney. The state's attorney shall notify the child's parents, guardian, or custodian, without unnecessary delay, of the time, date, and place of the temporary custody hearing. If the temporary custody hearing concerns an apparent abused or neglected Indian child, the state's attorney or Department of Social Services shall make reasonable efforts to inform the Indian custodian and the designated tribal agent for the Indian child's tribe, if known, of the time, date, and place of the temporary custody hearing. The information regarding the temporary custody hearing may be provided to the Indian custodian or the designated tribal agent orally or in writing, including by telephone or facsimile. The hearing shall be held within forty-eight hours if it concerns any apparent abused or neglected child or if it concerns any apparent delinquent child pursuant to § 26-8C-3 or within twenty-four hours if it concerns any apparent child in need of supervision pursuant to § 26-8B-3, excluding Saturdays, Sundays, and court holidays, after taking the child into temporary custody, unless extended by order of the court. Failure to notify the child's parents, guardian, or custodian, or to inform the Indian custodian or the designated tribal agent, of the temporary custody hearing is not cause for delay of the hearing if the child is represented by an attorney at the hearing. As used in this section, the terms, Indian child, Indian custodian, and Indian child's tribe, are defined as in 25 U.S.C. § 1903, as amended to January 1, 2005.

Source: SDC 1939, § 43.0320 as enacted by SL 1968, ch 164, § 14; SL 1979, ch 171, § 2; SL 1989, ch 226, § 2; SL 1991, ch 217, § 19B; SDCL Supp, § 26-8-19.2; SL 2001, ch 138, § 1; SL 2003, ch 149, § 12; SL 2005, ch 139, § 1; SL 2006, ch 144, § 1.

26-7A-15.1. Proceedings under certain chapters to which the Indian Child Welfare Act applies--Procedures.

In any proceeding under chapters 26-7A, 26-8A, or 26-8B, to which the terms of the "Indian Child Welfare Act", 25 U.S.C. § 1901 et seq., as amended to January 1, 2005, apply:

(1)    If the state's attorney knows or has reason to know that an Indian child is involved, the state's attorney shall notify the parent or Indian custodian and the Indian child's tribe, if known, of the pending proceedings and of their right of intervention. The notice shall be sent by registered mail with return receipt requested but may be personally served on any person entitled herein to receive notice in lieu of mail service. The notice to the Indian child's tribe shall be sent to the designated tribal agent. However, if the tribe appears by counsel or by a representative of the tribe pursuant to § 26-8A-33, the notice shall be sent to counsel or to the representative, as applicable. If the identity or location of the parent or Indian custodian and the Indian child's tribe cannot be determined, the notice shall be given to the United States Secretary of the Interior and to the area director for the Bureau of Indian Affairs in like manner, who have fifteen days after receipt to provide the requisite notice to the parent or Indian custodian and the tribe;

(2)    The state's attorney shall provide the notice prior to any adjudicatory hearing and prior to any final dispositional hearing in which the state seeks termination of parental rights of one or both parents or termination of the rights of the Indian custodian. However, upon intervention, the parent, tribe, or Indian custodian is entitled to notice in the manner authorized by the Rules of Civil Procedure and chapters 26-7A and 26-8A. The notice shall be served on counsel for the tribe or the representative for the tribe pursuant to § 26-8A-33, as applicable;

(3)    The court shall establish in the record that a notice of the proceeding was provided as required in this section. No foster care placement or termination of parental rights proceedings may be held until at least ten days after receipt of the foregoing notice by the parent or Indian custodian and the tribe or the Secretary. The parent or Indian custodian or the tribe shall, upon request, be granted up to twenty additional days to prepare for the proceeding;

(4)    The notice required in this section shall be written in clear and understandable language and shall include the following:

(a)    The name and tribal affiliation, if known, of the Indian child;

(b)    A copy of the petition unless the notice is served by publication pursuant to § 26-7A-48;

(c)    The name and address of the state's attorney;

(d)    A statement listing the rights of the Indian child's parents, Indian custodians, and tribes, under the Indian Child Welfare Act, 25 U.S.C. § 1901, et. seq., as amended to January 1, 2005, including:

(i)    The right of a Indian custodian or the Indian child's tribe to intervene in a proceeding for the foster care placement of, or termination of parental rights to, the Indian child;

(ii)    The right to file a motion to transfer the proceeding to the tribal court of the Indian child's tribe;

(iii)    The right to be granted up to twenty days from the receipt of the notice to prepare for the proceeding; and

(iv)    The right to request that the court grant further extensions of time;

(e)    If the petition alleges the child to be an abused or neglected child, a statement that the termination of parental or custodial rights is a possible remedy under the proceedings;

(f)    A statement that if the Indian child's parents or Indian custodian are unable to afford counsel, counsel may be appointed to represent them;

(g)    A statement in the notice to the tribe that the information contained in the notice, petition, pleading, or other documents are confidential; and

(h)    The location, mailing address and telephone number of the court.

The original or a copy of each notice sent pursuant to this section shall be filed with the court together with any return receipts or other proof of service;

(5)    Each party may examine all reports or other documents filed with the court upon which any decision with respect to such action may be based.

As used in this section, the terms, Indian, Indian child, parent, Indian custodian, tribe, Indian child's tribe, foster care placement, termination of parental rights, and secretary, are defined as in 25 U.S.C. § 1903, as amended to January 1, 2005.

Source: SL 2005, ch 139, § 2; SL 2006, ch 144, § 3.

26-7A-15.2. Form of notice to parent, custodian, or Indian tribe of child custody proceeding.

The form of the notice provided for in § 26-7A-15.1 is as follows:

TO: [Name and Address of the Parent/Custodian/Tribe]:

PLEASE TAKE NOTICE that, pursuant to the Indian Child Welfare Act of 1978 (25 U.S.C. § 1901, et. seq.), a child custody proceeding is now pending in the above-named court. The child(ren) who (is/are) the subject of this proceeding (is/are) believed to be (an) "Indian child(ren)" (as defined in 25 U.S.C. § 1903(4)) affiliated with the __________ Tribe.

A HEARING HAS BEEN SCHEDULED FOR __________ [date] AT __________ [time] (a.m./ p.m.) (CST/MST) IN THE COURTROOM OF THE __________ COUNTY COURTHOUSE, __________, SOUTH DAKOTA. A copy of the Petition by which this proceeding was initiated is attached.

You are further notified that:

1.    The following information is known regarding the parents, grandparents and Indian custodians:

a.    The names and last known addresses of the parents, grandparents and great grandparents or Indian custodians are as follows:

b.    Any maiden, married and former names and aliases are as follows:

c.    Birthdates and places of birth and death are as follows:

d.    Tribal enrollment number(s):

2.    You, as the parent(s) or Indian custodian, and the child(ren)'s tribe, may have a right to intervene in these proceedings.

3.    If you, as the parent(s) or Indian custodian, are unable to afford an attorney, an attorney may be appointed to represent you. If you desire a court-appointed attorney, you should contact the court using the information provided in paragraph 7 below.

4.    You may have the right, as the parent(s), Indian custodian, or Indian tribe, to have, upon request, 20 additional days to prepare for the hearing. If you desire additional time to prepare for the hearing, you should contact the court using the information provided in paragraph 7 below.

5.    You may have the right, as (a) parent(s), Indian custodian, or Indian tribe, to petition this Court for transfer of the proceeding to tribal court.

6.    The Petitioner in this action is the State of South Dakota, and the name and address of the attorney for the Petitioner is: __________, State's Attorney for __________ County, __________, South Dakota.

7.    The Court's phone number is __________. The Court's mailing address is __________. Please report to the Court or to the State all information you have as to the status of the above-named child(ren), including the eligibility/membership of the child(ren) or the parent(s) in any Indian tribe.

8.    If you are the child(ren)'s parent, it is possible that your parental rights will be terminated in this proceeding. If your parental rights are terminated in this proceeding, you will no longer be able to exercise parental, custodial or any other rights with regard to the child(ren).

9.    Since custody proceedings are conducted on a confidential basis, you are requested to keep confidential all information contained in this Notice.

Dated this __________ day of __________, 20__________.

____________________

State's Attorney

Source: SL 2005, ch 139, § 4.

26-7A-15.3. Designated tribal agent defined.

As used in this chapter, the term, designated tribal agent, means the agent, agency, or entity designated by the tribe, through tribal code or resolution, to receive notices of child custody proceedings subject to the Indian Child Welfare Act. The tribe may provide, in writing, to the director of the Division of Child Protection Services, Department of Social Services, the name or title, address, telephone number, and facsimile number, if applicable, of the designated agent. The department shall make the information available electronically by posting the information on the department's website not later than ten business days after the information is received by the director. If a tribe does not designate a tribal agent for receipt of notice, notice shall be given in accordance with 25 C.F.R. 23.12.

Source: SL 2006, ch 144, § 2.

26-7A-16. Child held until released by court.

Notwithstanding § 26-7A-14, an apparent, alleged, or adjudicated abused or neglected child, child in need of supervision, or delinquent child may be held in temporary custody until released by order of the court.

Source: SDC 1939, § 43.0320 as enacted by SL 1968, ch 164, § 14; SL 1979, ch 171, § 3; SL 1989, ch 226, § 3; SL 1991, ch 217, § 20B; SDCL Supp, § 26-8-19.3.

26-7A-17. Notice to state's attorney of child taken into temporary custody--Written report--Notice to court.

The officer or party who takes a child into temporary custody, with or without a court order, except under a court order issued during a noticed hearing after an action has been commenced, shall notify the state's attorney at the earliest opportunity of the time the child was taken into temporary custody and the location of the child. The officer or party shall also file a written report promptly with the state's attorney stating the facts which caused placement of the child in temporary custody, the identity and age of the child, available information about identities and locations of the child's parents, guardian, or custodian and if the parties were notified of the action. The state's attorney shall promptly notify the court.

Source: SDC 1939, § 43.0320 as enacted by SL 1968, ch 164, § 14; SL 1979, ch 171, § 4; SL 1989, ch 226, § 4; SL 1991, ch 217, § 21B; SDCL Supp, § 26-8-19.4.

26-7A-18. Temporary custody hearing--Best interests of child--Conducted telephonically.

At the temporary custody hearing the court shall consider the evidence of the need for continued temporary custody of the child in keeping with the best interests of the child. The temporary custody hearing may be conducted telephonically when necessary as determined by the court.

Source: SL 1991, ch 217, § 22.

26-7A-19. Options of court following temporary custody hearing for abused or neglected child.

If the child is an apparent, alleged, or adjudicated abused or neglected child, after the temporary custody hearing the court may:

(1)    Order the release of the child from temporary custody, either with or without restriction or condition or upon written promise of the child's parents, guardian, or custodian regarding the care and protection of the child; or

(2)    Continue the temporary custody of the child under the terms and conditions for duration and placement that the court requires, including placement of temporary custody of the child with the Department of Social Services, in foster care or shelter. The court and the Department of Social Services shall give placement preference to a relative, custodian, or an individual, not related by birth, adoption, or marriage to the child but who has an emotionally significant relationship with the child, who is available and who has been determined by the department to be qualified, provided that placement with that relative, custodian, or individual is in the best interest of the child. If temporary custody of the child is continued by the court, the court may provide for visitation of the child by the child's parents, guardian, custodian, or family members in keeping with the best interests of the child. If the child is in temporary custody of the Department of Social Services and has not been adjudicated as an abused or neglected child, the court shall review the child's temporary custody placement at least once every sixty days.

As used in this section, the term, relative, means an adult who is related to the child by blood, adoption, or marriage, and who is the child's grandparent, aunt, uncle, sibling, brother-in-law, sister-in-law, niece, nephew, great grandparent, great uncle, great aunt, first cousin, second cousin, stepparent, or stepsibling.

As used in this section, the term, custodian, means an adult who is the biological parent, adoptive parent, or guardian of the child's sibling or half-sibling.

Source: SL 1991, ch 217, § 22A; SL 2005, ch 140, § 1; SL 2018, ch 165, § 1.

26-7A-19.1. Preference for placement of abused or neglected child with relatives after hearing.

Subsequent to a temporary custody hearing, if a placement is made of an apparent, alleged, or adjudicated abused or neglected child, placement preference shall be given to a relative entitled to placement under § 26-7A-19.

Source: SL 2005, ch 140, § 2.

26-7A-19.2. Action by division when relative desires to take temporary or permanent placement of abused or neglected child.

If a family service specialist employed by the Division of Child Protection Services within the department is contacted by a relative about the relative's desire to take temporary or permanent placement of an alleged or adjudicated abused or neglected child who has been removed from the child's parent, guardian, or custodian, the division shall document the contact in the child's file. The division shall send information to the relative within five business days informing the relative of the steps required in order for the relative to be considered for placement. The information shall be sent by first class mail to the last known address of the relative. Nothing in this section prohibits the division from contacting any other person or agency regarding placement of the child.

Source: SL 2008, ch 136, § 1.

26-7A-20. Release of child in need of supervision after temporary custody hearing--Exceptions.

If the child is an apparent, alleged, or adjudicated child in need of supervision, after the temporary custody hearing the court shall release the child from temporary custody to the child's parents, guardian, or custodian, with or without restriction or condition or upon written promise of the parents, guardian, or custodian regarding care and supervision of the child, unless the court finds that the child should continue to be held in temporary custody for any of the following reasons:

(1)    The child has failed to comply with court services or a court-ordered program;

(2)    The child is being held for another jurisdiction as a parole or probation violator, as a runaway, or as a child under other court-ordered detention;

(3)    The child has a demonstrated propensity to run away from the child's home, from court-ordered placement outside of the child's home, or from agencies charged with providing temporary care for the child;

(4)    The child is under court-ordered home detention in this jurisdiction;

(5)    There are specific, articulated circumstances which justify the detention for the protection of the child from potentially immediate harm to the child's self or to others; or

(6)    The child is a material witness, the detention is necessary because of implications of tampering with the child, and an affidavit so stating is filed with the court.

An apparent, alleged, or adjudicated child in need of supervision may not be placed in detention for longer than twenty-four hours after the temporary custody hearing unless the child has been accused of or has been found in violation of a valid court order as provided in § 26-8B-3.

Source: SL 1991, ch 217, § 22B; SL 1994, ch 219, § 5; SL 1995, ch 148, § 6; SL 1996, ch 172, § 4; SL 2003, ch 149, § 13; SL 2021, ch 120, § 3.

26-7A-21. Release of delinquent child after temporary custody hearing--Exceptions.

If the child is an apparent, alleged, or adjudicated delinquent child, after the temporary custody hearing the court shall release the child from temporary custody to the child's parents, guardian, or custodian, with or without restriction or condition or upon written promise of the child's parents, guardian, or custodian regarding the custody and supervision of the child and the subsequent appearance of the child in court at a time, date, and place to be determined by the court, unless the court finds that the child should continue to be held in temporary custody of court services for any of the following reasons:

(1)    The child is a fugitive from another jurisdiction;

(2)    The child is charged with a violation of § 22-22-7, a crime of violence under subdivision 22-1-2(9), or a property crime, which, if committed by an adult, would be a felony;

(3)    The child is already held in detention or on conditional release in connection with another delinquency proceeding;

(4)    The child has a demonstrable recent record of willful failures to appear at juvenile court proceedings;

(5)    The child has a demonstrable recent record of violent conduct;

(6)    The child has a demonstrable recent record of adjudications for serious property offenses;

(7)    The child is still under the influence of alcohol, inhalants, or a controlled drug or substance;

(8)    The child has failed to comply with court services or a court ordered program; or

(9)    There are specific, articulated circumstances that justify detention, not to exceed five days, for the protection of the child from potentially immediate harm to the child or to others.

Source: SL 1991, ch 217, § 22C; SL 1995, ch 148, § 7; SL 1996, ch 172, § 5; SL 1997, ch 158, § 2; SL 2024, ch 98, § 2.

26-7A-22. Temporary custody not an arrest.

The taking of any child into temporary custody under this chapter or chapter 26-8A, 26-8B, or 26-8C is not an arrest and does not constitute a police record.

Source: SDC 1939, § 43.0320 as enacted by SL 1968, ch 164, § 14; SL 1991, ch 217, § 23B; SDCL, § 26-8-19.7.

26-7A-23. Temporary care, shelter, or detention facilities maintained by board of county commissioners.

A board of county commissioners may provide and maintain at public expense temporary care, shelter, or detention facilities, sight and sound separated from adult prisoners, where children coming within the provisions of this chapter or chapter 26-8A, 26-8B, 26-8C, or §§ 26-11A-13 and 26-11A-14, may, if necessary or appropriate, be placed for temporary care, temporary custody, shelter, or detention as designated by the court, or temporary detention or shelter by the Department of Corrections. Sections 26-11A-19 and 26-7A-94 governs the costs of custodial care of children.

Source: SDC 1939, § 43.0309; SL 1961, ch 213, § 2; SL 1968, ch 164, § 7; SL 1991, ch 217, § 30B; SDCL, § 26-8-26; SL 1996, ch 172, § 70; SL 1997, ch 158, § 6; SL 2003, ch 149, § 2.

26-7A-24. Intercounty contracts for use of facilities.

If a board of county commissioners provides and maintains temporary care, shelter, or detention facilities under § 26-7A-23, the board may contract or enter into an agreement under the authority of chapter 1-24 with the board of county commissioners of other counties of the state to receive the children of other counties who may be ordered to be placed in temporary care, shelter or detention in appropriate facilities under the provisions of this chapter and chapter 26-8A, 26-8B, 26-8C, or §§ 26-11A-13 and 26-11A-14. The board of county commissioners determines the charges for such services to be paid by the other county, subject to §§ 26-7A-94 and 26-11A-19, and thereafter shall receive such children in its facilities according to the terms and conditions of the contract or agreement. In addition to the provisions of chapter 1-24, an agreement pursuant to this section may be for any period of time and may provide for liquidated damages to be imposed upon any party withdrawing without the consent of all other parties to the agreement. The liquidated damages, reduced to present value, may not exceed the minimum contribution agreed to by the withdrawing party upon termination of the agreement.

Source: SDC 1939, § 43.0309 as added by SL 1961, ch 213, § 2; SL 1968, ch 164, § 7; SL 1991, ch 217, § 31B; SDCL, § 26-8-27; SL 1995, ch 7, § 3; SL 1996, ch 172, § 71.

26-7A-25. County to care for children pending adjudication.

A board of county commissioners shall provide by contract or otherwise for the temporary care, shelter or detention of children under this chapter and chapters 26-8A, 26-8B, and 26-8C pending the adjudication of such children. Section 26-7A-94 governs the payment of custodial costs of children.

Source: SDC 1939, § 43.0309; SL 1961, ch 213, § 1; SL 1968, ch 164, § 7; SL 1991, ch 217, § 32B; SDCL, § 26-8-28.

26-7A-26. Detention in jail with adult prisoners prohibited for abused or neglected child--Temporary detention--Detention with adults for child transferred to adult court.

No apparent, alleged, or adjudicated abused or neglected child may be securely detained at any time in a jail, lockup, or in any type of detention or temporary care facility containing adult prisoners. An apparent, alleged, or adjudicated child in need of supervision may not be securely detained in a jail, lockup, or in any type of detention or temporary care facility containing adult prisoners except for approved collocated detention centers as defined in § 26-7A-1 and as authorized in §§ 26-8B-3, 26-8B-6, and 26-7A-20.

An apparent or alleged delinquent child may be held in an adult lockup or jail for up to six hours for purposes of identification, processing, interrogation, transfer to juvenile facility, or release to parents if the child is sight and sound separated from adult prisoners.

In any area not designated as a metropolitan statistical area by the United States Bureau of the Census, an apparent or alleged delinquent child may be held in an adult lockup or jail for up to forty-eight hours excluding holidays and weekends or until the temporary custody hearing, whichever is earlier, if the facility has been certified by the Department of Corrections as providing sight and sound separation of juveniles from adults and if no suitable juvenile facility is available.

A child who has been transferred to adult court pursuant to § 26-11-4 or a child who is being tried in circuit court as an adult pursuant to § 26-11-3.1 may be held in an adult lockup or jail if physically separated from adult prisoners.

A child who has attained the age of majority who is under the continuing jurisdiction of the court or the Department of Corrections may be held in an adult jail or lockup.

A child under the age of eighteen years who has been transferred to adult court pursuant to §§ 26-11-3.1 or 26-11-4 and who has been convicted of a felony as an adult may be held in an adult jail or lockup.

Source: SDC 1939, § 43.0309; SL 1968, ch 164, § 7; SL 1989, ch 229, § 1; SL 1991, ch 217, § 33B; SDCL Supp, § 26-8-29; SL 1992, ch 183, § 6; SL 1994, ch 219, § 8; SL 1996, ch 173; SL 1997, ch 158, § 3; SL 1997, ch 163, § 4; SL 2001, ch 139, § 1; SL 2003, ch 149, § 3; SL 2007, ch 163, § 2.

26-7A-27. Police records of children taken into temporary custody--Confidentiality.

The records of law enforcement officers and agencies concerning all children taken into temporary custody or issued a summons or citation under this chapter or chapter 26-8A, 26-8B, or 26-8C shall be maintained separately from the records of arrest and any other records regarding detention of adult persons. The records concerning children, including their names, may not be inspected by or disclosed to the public except:

(1)    By order of the court;

(2)    If the court orders the child to be held for criminal proceedings, as provided in chapter 26-11;

(3)    If there has been a criminal conviction and a presentence investigation is being made on an application for probation; or

(4)    Any child or the child's parent or guardian may authorize the release of records to representatives of the United States Military for the purpose of enlistment into the military service.

Source: SDC 1939, § 43.0320 as enacted by SL 1968, ch 164, § 14; SL 1979, ch 171, § 5; SL 1989, ch 226, § 5; SL 1991, ch 217, § 34B; SDCL Supp, § 26-8-19.5; SL 1992, ch 183, § 18; SL 1994, ch 157, § 6; SL 1994, ch 214.

26-7A-28. Release of information on identity of child prohibited except by court order or when child adjudicated delinquent offender.

No fingerprint, photograph, name, address, or other information concerning the identity of any child taken into temporary custody or issued a summons under this chapter or chapter 26-8A, 26-8B, or 26-8C may be released or transmitted to the Federal Bureau of Investigation or any other person or agency except in the following instances:

(1)    To the person or party specifically authorized by order of the court; and

(2)    To courts, law enforcement agencies, prosecuting attorneys, court services officers, and the Department of Social Services if the child is an adjudicated delinquent offender.

Information regarding an alleged, apparent, or adjudicated abused or neglected child may be released only in accordance with § 26-8A-13.

Source: SDC 1939, § 43.0320 as enacted by SL 1968, ch 164, § 14; SL 1991, ch 217, § 35B; SDCL, § 26-8-19.6; SL 1992, ch 183, §§ 14, 17; SL 1992, ch 185.

26-7A-29. Release of information to persons, agencies, or facilities with legitimate interest in child.

Notwithstanding §§ 26-7A-27 and 26-7A-28, information concerning children may be released, pursuant to an order of the court, to persons or agencies who have a legitimate interest in the child, to the child's parents, guardian, or custodian, or to the child's attorney. The Department of Social Services may release information pursuant to provisions of § 26-8A-13 regarding apparent, alleged, or adjudicated abused or neglected children. Any correctional or detention facility may release information concerning any child to any other correctional or detention facility that has a legitimate interest in the child.

Source: SL 1990, ch 194; SL 1991, ch 217, § 36B; SDCL Supp, § 26-8-19.9; SL 1992, ch 186; SL 1999, ch 133, § 1.

26-7A-30. Rights of child and parents, guardian, or custodian--Representation by attorney--Motion for new hearing--Appeal.

The court shall advise the child and the child's parents, guardian, or custodian involved in any action or proceedings under this chapter or chapter 26-8A, 26-8B, or 26-8C of their constitutional and statutory rights, including the right to be represented by an attorney, at the first appearance of the parties before the court. The court shall also advise them of the right of the parties to file, at the conclusion of the proceedings, a motion for a new hearing and, if the motion is denied, the right to appeal according to the rules of appellate procedure governing civil actions.

Source: SDC 1939, § 43.0309 as added by SL 1968, ch 164, § 7; SL 1991, ch 217, § 37B; SDCL, § 26-8-22.3.

26-7A-31. Court appointed attorney--Compensation.

If the child or the child's parents, guardian, or other custodian requests an attorney in proceedings under this chapter or chapter 26-8A, 26-8B, or 26-8C and if the court finds the party to be without sufficient financial means to employ an attorney, the court shall appoint an attorney for the party. The court may appoint an attorney for any child or any party to the proceedings without request of the party if the court deems representation by an attorney necessary to protect the interests of the party. Reasonable and just compensation for services of a court-appointed attorney and for necessary expenses and costs incident to the proceedings shall be determined by the court within guidelines established by the presiding judge of the circuit court and shall be paid by the county in which the action is being conducted according to the manner prescribed by the court. If the court-appointed attorney is a party to a contract with the county to provide indigent counsel pursuant to subdivision 23A-40-7(3), the compensation for that attorney shall be that which the attorney would receive under the contract. This section does not preclude the court from appointment of an attorney for a child as required by provisions of chapter 26-8A.

Source: SDC 1939, § 43.0309 as added by SL 1968, ch 164, § 7; SL 1991, ch 217, § 38B; SDCL § 26-8-22.2; SL 2010, ch 139, § 1.

26-7A-32. Lien against property of parents for payment of court-appointed attorney--Exceptions--Limitation.

There is hereby created a lien, enforceable as provided in chapter 23A-40, upon all the property, both real and personal, of the parents, jointly or severally, of any child involved in proceedings under this chapter or chapter 26-8A, 26-8B, or 26-8C to repay funds paid by the county for a court-appointed attorney for the child's parents or by the county or the state for the child. The county, on behalf of the county or the state, shall have a claim against the parents and their estates, jointly or severally, as provided in chapter 23A-40.

However, except in the case of informal adjustment or suspended imposition of adjudication, no lien or claim against the parents of a child may be created or may arise if the child is not adjudicated to be an abused or neglected child, a child in need of supervision or a delinquent child at the completion of the adjudicatory hearing and the proceedings are terminated.

The lien and claim on the property of the parents of a child pursuant to this section may not exceed one thousand five hundred dollars plus an amount equal to any taxable court costs. This limit does not apply to any claim or lien against the parents of a child adjudicated to be an abused or neglected child.

Source: SL 1989, ch 227, § 1; SL 1991, ch 217, § 39B; SDCL Supp, § 26-8-22.14; SL 2002, ch 122, § 2.

26-7A-32.1. Definition of terms regarding competency of juvenile.

Terms used in this chapter mean:

(1)    "Mental illness," any diagnosable mental impairment supported by the most current edition of the Diagnostic and Statistical Manual of Mental Disorders, published by the American Psychiatric Association;

(2)    "Developmental disability," a disability as defined by § 27B-1-18; and

(3)    "Approved facility," a facility as defined by § 23A-10A-13.

Source: SL 2013, ch 121, § 1.

26-7A-32.2. Incompetent juvenile not subject to chapters 26-8B or 26-8C.

A juvenile cannot be the subject of a proceeding under chapters 26-8B or 26-8C while incompetent to proceed.

Source: SL 2013, ch 121, § 2.

26-7A-32.3. Raising issue of competency.

The issue as to a juvenile's competency to proceed may be raised by the juvenile, by the state, or sua sponte by the court at any point in the juvenile proceeding if there is reasonable cause to believe the juvenile is suffering from a mental illness or developmental disability rendering the juvenile incompetent to proceed. The term, incompetent to proceed, is defined by § 23A-10A-1.

Source: SL 2013, ch 121, § 3.

26-7A-32.4. Competency examination.

If the court determines that a competency determination is necessary, the court shall order the juvenile be examined by a licensed psychiatrist or psychologist who is familiar with the clinical evaluation of juveniles. The examination shall take place within thirty days of the court's order unless good cause is shown for a delay.

Source: SL 2013, ch 121, § 4.

26-7A-32.5. Suspension of proceeding pending competency determination.

Pending an examination ordered pursuant to § 26-7A-32.4, the court shall suspend the proceeding pending the outcome of a competency determination hearing pursuant to § 26-7A-32.7. Suspension of the proceeding does not affect the court's ability to detain or release the juvenile.

Source: SL 2013, ch 121, § 5.

26-7A-32.6. Examiner's report.

The provisions of this section govern criteria for the examiner's report in order to assist the court's determination of competency. The examiner's report shall address the juvenile's capacity and ability to:

(1)    Understand the allegations of the petition;

(2)    Understand the nature of the adversarial process including:

(a)    A factual understanding of the participants in the juvenile's proceeding, including the judge, juvenile's counsel, attorney for the state, and mental health expert; and

(b)    A rational understanding of the role of each participant in the juvenile's proceeding;

(3)    Understand the range of possible dispositions that may be imposed in the proceedings against the juvenile;

(4)    Disclose to counsel facts pertinent to the proceedings at issue and to assist in the juvenile's defense;

(5)    Testify at proceedings; and

(6)    Demonstrate any other capacity or ability either separately sought by the court or determined by the examiner to be relevant to the court's determination.

In assessing the juvenile's competency, the examiner shall compare the juvenile being examined to juvenile norms for a juvenile of a similar age and the juvenile's level of developmental skills. The examiner shall also determine and report whether the juvenile suffers from a mental illness or developmental disability as defined in § 26-7A-32.1. The examiner's report shall state an opinion whether there exists a substantial probability that the deficiencies related to competence identified in the report, if any, can be ameliorated or will continue to exist in the foreseeable future.

If the examiner determines that the juvenile suffers from a mental illness, the examiner shall provide the following information:

(1)    The prognosis for recovery from the mental illness; and

(2)    Whether the juvenile is taking any medication and, if so, what medication.

Source: SL 2013, ch 121, § 6.

26-7A-32.7. Competency determination hearing.

Following receipt of the competency evaluation report from the examiner, the court shall provide copies of the report to the parties and hold a competency determination hearing. If the court finds that the juvenile is competent to proceed, the court shall set a time for the resumption of the proceedings. If the court is not satisfied that the juvenile is competent to proceed, the court shall determine how to proceed pursuant to §§ 26-7A-32.11 and 26-7A-32.12.

Source: SL 2013, ch 121, § 7.

26-7A-32.8. Burden of proving competence.

If the juvenile, state, or court asserts that a juvenile is not competent to proceed, the state has the burden of proving the competence of the juvenile by a preponderance of the evidence.

Source: SL 2013, ch 121, § 8.

26-7A-32.9. Statements by juvenile during competency evaluation not admissible.

Statements made by the juvenile in the course of a competency evaluation may not be admitted as evidence in the adjudicatory stage for the purpose of proving any alleged delinquent act.

Source: SL 2013, ch 121, § 9.

26-7A-32.10. Competency may be revisited upon transfer to adult court.

Notwithstanding a finding by the court that the juvenile is competent to proceed in a juvenile proceeding, if the juvenile is subsequently transferred to adult court the issue of the juvenile's competency may be revisited.

Source: SL 2013, ch 121, § 10.

26-7A-32.11. Procedure upon finding that juvenile not competent to proceed but probably will be competent in foreseeable future.

If, following the competency determination hearing pursuant to § 26-7A-32.7, the court finds that the juvenile is not competent to proceed, but additionally finds that there exists a substantial probability that the juvenile will be competent in the foreseeable future, the court shall continue the suspension of the proceedings and may refer the juvenile to an approved facility for evaluation and treatment of the mental health and behavioral needs identified in the report of the examiner. During this time the court may make orders that it deems appropriate for services that may assist the juvenile in attaining competency. Evaluation and treatment should be conducted in the least restrictive environment with due regard to the best interests of the child and the public. Notwithstanding any order pursuant to this section, the administration of any psychotropic medication shall comply with the procedures set forth in chapter 27A-15.

The juvenile shall be examined and a report forwarded to the court relating to the juvenile's competency to proceed and its reasons at the following intervals following referral: at the end of sixty days or sooner; at the end of one hundred eighty days; and at the end of one year. Upon receipt of the report, the court shall forward the report to the parties and without delay set a date for a conference of the parties or, upon a motion of any party, set a hearing on the question of the juvenile's competency to proceed. If the court finds that the juvenile is not competent to proceed, but there exists a substantial probability that the juvenile will be competent to proceed in the foreseeable future, the proceedings shall remain suspended pending further review or hearing.

If more than one year has elapsed since the suspension of the proceedings, the court shall promptly hold a hearing to determine whether there exists a substantial probability that the juvenile will be competent in the foreseeable future. The burden of proof is on the state in any such hearing. If the court finds that there does not exist a substantial probability that the juvenile will be competent in the foreseeable future, the court shall review the juvenile's condition to determine appropriate placement and may dismiss the petition or, if post-adjudication, may vacate the adjudication order and dismiss the petition.

If, during the suspension of the proceedings, the juvenile reaches eighteen years of age or is emancipated under Title 26, the court may evaluate the appropriateness of placing the juvenile in an appropriate institution for the care and treatment of adults with mental illness or developmental disability for observation, care, and treatment.

The court shall set a time for resumption of the proceedings if at any point the court finds that the juvenile is now competent to proceed.

Source: SL 2013, ch 121, § 11.

26-7A-32.12. Procedure upon finding that juvenile not competent to proceed and probably will not be competent in foreseeable future.

If, following the competency determination hearing provided in § 26-7A-32.7, the court finds that the juvenile is not competent to proceed and that there does not exist a substantial probability that the juvenile will be competent in the foreseeable future, the court shall review the juvenile's condition to determine appropriate placement and upon notice to the state shall dismiss the petition or, if post-adjudication, shall vacate the adjudication order and dismiss the petition.

Source: SL 2013, ch 121, § 12.

26-7A-33. Priority in scheduling hearings and trials.

In scheduling hearings and trials, the court shall give priority to proceedings concerning a child who is in temporary custody or who has otherwise been removed from the home of the child's parents, guardian, or custodian before a final disposition has been made in the proceedings affecting the child.

Source: SDC 1939, § 43.0327 as added by SL 1968, ch 164, § 16; SL 1991, ch 217, § 40B; SDCL, § 26-8-23.2.

26-7A-34. Conduct of hearings.

Hearings under this chapter and chapters 26-8A, 26-8B, and 26-8C shall be conducted as follows:

(1)    Adjudicatory hearings shall be conducted in accordance with rules of civil procedure under chapter 15-6, except as otherwise provided in this chapter; and

(2)    Dispositional hearings and all other hearings shall be tried to the court and shall be conducted and designed to inform the court fully of the exact status of the child and to ascertain the history, environment and past and present physical, mental and moral condition of the child and of the child's parents, guardian, or custodian.

Source: SDC 1939, § 43.0327; SL 1968, ch 164, § 16; SL 1991, ch 217, § 41B; SDCL, § 26-8-30.

26-7A-35. Record of hearings.

A verbatim record shall be taken of all hearings, except telephonic temporary custody hearings held pursuant to § 26-7A-13, under this chapter and chapters 26-8A, 26-8B, and 26-8C.

Source: SDC 1939, § 43.0327 as added by SL 1968, ch 164, § 16; SL 1991, ch 217, § 42B; SDCL, § 26-8-32.4; SL 1992, ch 183, § 5.

26-7A-36. Hearings closed unless court compelled otherwise--Exceptions.

All hearings in actions under this chapter and chapter 26-8A, 26-8B, or 26-8C are closed unless the court finds compelling reasons to require otherwise. However, all pleadings and hearings shall be open and a matter of public record if a juvenile is summoned into court for an offense which if committed by an adult would constitute a crime of violence as defined in subdivision 22-1-2(9) or a crime involving a drug offense in violation of § 22-42-2 or 22-42-3, and at the time of the offense the juvenile was sixteen years of age or older.

Source: SDC 1939, § 43.0327; SL 1968, ch 164, § 16; SL 1991, ch 217, § 45B; SDCL, § 26-8-32; SL 1996, ch 174.

26-7A-36.1. Attendance at juvenile hearings by crime victims.

Notwithstanding the provisions of § 26-7A-36, the victim of any act of juvenile delinquency may attend all hearings involving the juvenile. The term, victim, means a person who is defined as a victim in subdivision 22-1-2(53) or in § 23A-28C-4, or, if the victim is a child, the victim's parents, guardian, or custodian. The court may exclude a victim from a hearing if the court finds compelling reasons. The court may also sequester a victim who is a witness. The state's attorney shall notify the victim of the time and place of hearings involving the juvenile.

Source: SL 1996, ch 175.

26-7A-37. Persons authorized to inspect or receive copies of records of court proceedings.

Records of court proceedings, including reports of the Department of Social Services, records and reports of court services officers, clinical studies, and evaluation reports, under this chapter and chapters 26-8A, 26-8B, and 26-8C shall be open to inspection by or disclosure to the child's parents, guardian, or custodian and by other respondent parties involved in the proceedings, their attorneys, the child's attorney and by any department or agency having custody of the child.

Pursuant to court order, records of court proceedings may be inspected by or disclosed to the child, by parties having a legitimate interest in the proceedings and by parties conducting pertinent research studies.

Source: SDC 1939, § 43.0327; SL 1968, ch 164, § 16; SL 1991, ch 217, § 46B; SDCL § 26-8-33; SL 2010, ch 140, § 1.

26-7A-38. Protection of identity of witnesses--Violation creates cause of action for civil damages--Contempt.

The name, picture, place of residence, or identity of any child, parent, guardian, custodian, or any person appearing as a witness in proceedings under this chapter or chapter 26-8A, 26-8B, or 26-8C may not be published or broadcast in any news media or given any other publicity, unless for good cause it is specifically permitted by order of the court. Violation of this section creates a cause of action for civil damages on behalf of the child and is subject to the same punishment as contempt of court.

Source: SDC 1939, §§ 43.0301, 43.0327; SL 1968, ch 164, § 16; SL 1991, ch 217, § 47B; SDCL, § 26-8-34.

26-7A-39. Compulsory process for attendance of defense witnesses.

A parent or guardian shall be entitled to the issuance of compulsory process for the attendance of witnesses on his own behalf or on behalf of the child. Upon application to the court, compulsory process shall be issued for the attendance of witnesses on behalf of the child.

Source: SDC 1939, § 43.0327 as added by SL 1968, ch 164, § 16; SDCL, § 26-8-32.1.

26-7A-40. Witness fees and expenses.

The court may authorize the payment of witness fees and necessary travel expenses incurred by persons summoned or otherwise required to appear at hearings under this chapter and chapter 26-8A, 26-8B, or 26-8C. Payment may not exceed the amount allowed to witnesses in the circuit court under the rules of civil procedure.

Source: SDC 1939, § 43.0327 as added by SL 1968, ch 164, § 16; SL 1991, ch 217, § 49B; SDCL, § 26-8-32.2.

26-7A-41. Physical and mental health examination--Placement in suitable facility--Report.

The court may require an apparent, alleged, or adjudicated abused or neglected child, child in need of supervision, or delinquent child under jurisdiction of the court to be examined by a physician or qualified mental health professional. The court may place the child in a hospital or other suitable facility for that purpose and direct that an examination or evaluation report be submitted to the court. The court may consider the report at any adjudicatory or dispositional hearing.

Source: SDC 1939, § 43.0327 as added by SL 1968, ch 164, § 16; SL 1991, ch 217, § 50B; SDCL, § 26-8-22.12.

26-7A-42. Court-ordered protection, support or dental, medical or surgical treatment--Parental consent--Costs.

Prior to or following adjudication or disposition of a child under the courts jurisdiction, the court may issue orders providing for any protection, support, or dental, medical, or surgical treatment of an alleged or adjudicated abused or neglected child, child in need of supervision, or delinquent child that the court deems to be in the best interests of the child.

The state shall make a reasonable effort to obtain parental consent to treatment of a child under this section. However, lack of parental consent does not abrogate the authority of the court to order treatment if an emergency need exists or if there is a compelling need for treatment for the protection, well-being or safety of the child. Effort by the state to obtain parental consent to treatment of a child is not required if the child is in temporary custody or if the child's parents, guardian, or custodian are not immediately available.

The court may issue such orders as necessary and appropriate to secure the payment of the costs of treatment of the child under this section by the child's parents or other parties responsible for the care, support, and maintenance of the child, by the county, by the party having custody of the child or by any combination of them.

Source: SDC 1939, § 43.0314; SL 1968, ch 164, § 11; SL 1991, ch 217, § 51B; SDCL, § 26-8-43.

26-7A-43. Petition alleging abused or neglected child, child in need of supervision or delinquent child--Required information--Verification.

A state's attorney may file with the clerk of courts a written petition alleging a child, located or residing in the county, to be an abused or neglected child, a child in need of supervision, or a delinquent child, as defined by this chapter or chapter 26-8A, 26-8B, or 26-8C. The petition shall include the following:

(1)    The child's name, date of birth, and residence;

(2)    The names and residences of the child's parents, guardian, or custodian, or, if not known, of the child's nearest known relatives;

(3)    A statement of the facts that bring the child within the court's jurisdiction;

(4)    A request that the court adjudicate the child to be an abused or neglected child, a child in need of supervision or a delinquent child, according to applicable statutory definitions, and that appropriate proceedings be conducted regarding adjudication and disposition; and

(5)    A statement as to whether or not the Indian Child Welfare Act appears to be applicable.

Two or more children having one or more common parent, guardian, or custodian and a common home environment may be included in the same petition.

If the petition alleges a child to be an abused or neglected child, the petition shall recite that the action is brought by the state on behalf of the South Dakota Department of Social Services. Petitions filed regarding an alleged child in need of supervision or a delinquent child shall be on behalf of the state.

Affidavits of social workers of the Department of Social Services, law enforcement officers, or court services officers may be incorporated by reference as part of the petition.

The child's parents, guardian, or custodian, as applicable, shall be included as named respondents in the petition.

The petition may be made upon information and belief. If the petition is signed by a party other than a state's attorney, the petition shall be verified.

Source: SDC 1939, § 43.0305; SL 1968, ch 164, § 5; SL 1991, ch 217, § 52B; SDCL, § 26-8-10.

26-7A-44. Summons--Unknown parties--Contents.

Upon the filing of the petition, the court, the clerk of the court, or the prosecuting attorney shall issue a summons stating the time, date, and place for the hearing on the petition that is directed to the child's parents, guardian, or custodian, if any. If the petition declares the parties are unknown, then to "All Whom It May Concern" is sufficient to authorize the court to hear and determine the action as though the parties had been described by their proper names. The summons shall:

(1)    Require the persons named in it to appear, either in person or by attorney, at a stated time, date, and place and to respond to the petition and shall advise the persons named that failure to appear is an admission to the allegations contained in the petition;

(2)    State that the persons named and the child who is the subject of the petition have the right to an attorney at all stages of the proceedings;

(3)    If the petition alleges the child to be an abused or neglected child, include a statement that the termination of parental rights is a possible remedy under the proceeding. The summons may not require the child to personally appear unless otherwise required by the court;

(4)    If the petition alleges the child to be a child in need of supervision or a delinquent child, require the parents or the party having custody of the child to appear, either in person or by attorney, with the child at the time, date, and place stated in the summons; and

(5)    If the petition alleges the Indian Child Welfare Act to be applicable, so state and give appropriate notice accordingly.

Source: SDC 1939, § 43.0306; SL 1973, ch 163, § 6; SL 1981, ch 202; SL 1991, ch 217, § 55B; SDCL, § 26-8-13; SL 1995, ch 149; SL 2004, ch 179, § 1.

26-7A-45. Failure to appear before the court--Contempt.

If the party having custody of an alleged child in need of supervision or alleged delinquent child, without reasonable cause, fails to bring the child before the court and to appear in person or by attorney with the child as required by the summons, the party may be proceeded against as in a case of civil contempt.

If the summons requires the party having custody of an alleged abused or neglected child to appear either in person or by attorney with the child at the time, date, and place stated in the summons and the child is in the custody of the party and not previously taken into temporary custody, the party having custody of the child shall produce the child before the court. If the party having custody of the child, without reasonable cause, fails to bring the child before the court and to appear, in person or by attorney, with the child, the party may be proceeded against as in a case of civil contempt.

Source: SDC 1939, § 43.0309; SL 1961, ch 212; SL 1968, ch 164, § 7; SL 1991, ch 217, § 57B; SDCL, § 26-8-17.

26-7A-46. Hearing on petition upon waiver of notice.

If all persons and parties named in the summons and entitled to notice of hearing on the petition, including any attorney for the child, file a written request with the court that the child be declared to be an abused or neglected child, a child in need of supervision or a delinquent child, if all the parties voluntarily appear in court and orally waive notice of hearing on the petition, or if all the parties file with the court written waiver of notice on the petition, the court may proceed with the hearing on the petition with the concurrence of the parties.

Source: SDC 1939, § 43.0307; SL 1991, ch 217, § 58B; SDCL, § 26-8-14.

26-7A-47. Service of summons.

The summons shall be served in the same manner as personal service of summons according to the rules of civil procedure or by publication as provided in this chapter not less than five days before the date of the hearing on the petition and shall be served as follows:

(1)    On the child if the child is an alleged child in need of supervision or an alleged delinquent child or is a child who is apparently emancipated or is living independently and not residing with a parent, guardian, or custodian; and

(2)    On the other persons or parties named in the summons.

Proofs of service, made according to the rules of civil procedure, shall be filed with the court before commencement of the hearing on the petition.

Source: SDC 1939, § 43.0306; SL 1991, ch 217, § 59B; SDCL, § 26-8-15.

26-7A-48. Publication of summons--Affidavit or certificate of publication.

If the petition or an affidavit of the state's attorney discloses that any person or party to be served with the summons is out of the state, on inquiry cannot be found, is concealed within the state, resides out of the state, whose mail at the last known address has been returned, whose location is unknown or is affected by the designation "All Whom It May Concern," the court shall cause the summons, modified to declare the initials of the child in lieu of the name of the child, to be published once in a newspaper of general circulation published in the county where the action is pending or in a newspaper in another county designated by the court as most likely to give notice to the party to be served. Publication of the summons shall be made not less than five days before the date of the hearing on the petition. Notice given by the publication is the only required notice to the concerned persons or parties to be served who are described in this section. An affidavit or certificate of publication made by the concerned newspaper and accepted by the court is evidence of service of summons by publication.

If service of the summons by publication is authorized, the party making service may at his option, without any order of the court, personally serve the summons on any person or party out of the state or the party may admit service of the summons, and no publication of the summons for that party is necessary.

Source: SDC 1939, § 43.0308; SL 1991, ch 217, § 60B; SDCL, § 26-8-16.

26-7A-49. Warrant issued against parents, guardian, or custodian.

If the summons is not served on any parent, guardian, or custodian of the child, if any party fails to obey the summons, or if it is made apparent to the court by affidavit of the state's attorney, which may be on information and belief, that a summons will be ineffective to secure the required presence of the child, a warrant may be issued by the court against the parents, guardian, or custodian of the child requiring that the party or the party and the child be brought before the court. If the court requires the presence of any child, a warrant may be issued by the court against the child directing the child to appear before the court.

Source: SDC 1939, § 43.0309; SL 1961, ch 212; SL 1968, ch 164, § 7; SL 1991, ch 217, § 61B; SDCL, § 26-8-18.

26-7A-50. Apprehension of child on warrant--Promise of parent, guardian, or custodian to produce child at hearing.

If a warrant is issued for any child whose presence is required by the court, any law enforcement officer may take the child into custody and bring the child before the court. In lieu of taking custody of the child, the court or any officer processing the warrant may accept the verbal or written promise of the child's parents, guardian, or custodian served with the summons to be personally responsible for bringing the child before the court as required by the summons or the warrant or at any other time to which the hearing has been adjourned or continued as determined by the court.

Source: SDC 1939, § 43.0309; SL 1968, ch 164, § 7; SL 1991, ch 217, § 62B; SDCL, § 26-8-19.

26-7A-51. Failure to produce child at hearing as contempt.

If any parent, guardian, or custodian of a child makes a verbal or written promise to bring the child before the court as authorized by § 26-7A-50 and, without reasonable cause, fails to do so, that person or party may be proceeded against for civil contempt.

Source: SDC 1939, § 43.0309; SL 1968, ch 164, § 7; SL 1991, ch 217, § 63B; SDCL, § 26-8-20.

26-7A-52. Bond to secure court appearance of child in need of supervision or delinquent child.

Any alleged child in need of supervision or alleged delinquent child who is the subject of proceedings under this chapter or chapter 26-8B or 26-8C may give bond or other security for the child's appearance before the court according to the order of the court. The court may appoint an attorney to appear and represent the child.

Source: SDC 1939, § 43.0309; SL 1961, ch 213, § 2; SL 1968, ch 164, § 7; SL 1991, ch 217, § 64B; SDCL, § 26-8-21.

26-7A-53. Appearance and answer by interested parties--Failure as default--Petition taken as admitted by default.

Every person or party to whom notice is given by summons and all other interested parties affected by the designation "All Whom It May Concern" may appear, either in person or by attorney, pursuant to summons, and answer, either in writing or orally in open court, in response to the petition. If any party fails to appear pursuant to summons or fails to answer or otherwise respond to the petition, the party shall be deemed by the court to be in default and the petition shall be taken as admitted by the party.

Source: SDC 1939, § 43.0308; SL 1991, ch 217, § 65B; SDCL, § 26-8-24.

26-7A-54. Advisory hearing before adjudicatory hearing.

On appearance of the parties pursuant to summons or at any adjournment or continuance of an appearance, the court shall conduct an advisory hearing before the adjudicatory hearing on the petition, as follows:

(1)    The court shall first:

(a)    Ascertain the need for any joinder or deletion of parties, determine true names and addresses of parties and their relationships to the child, and determine the true name, date and place of birth, address, and custodial status of the child;

(b)    Advise the parties of the nature of the proceedings, the allegations contained in the petition, the burden of proof of the state and the constitutional and statutory rights of the parties; and

(c)    Advise the parties of their rights to be represented by attorneys and requirements for court-appointed attorney, if appropriate, and, if requested by any party or if required by the court, the court may adjourn and continue the advisory hearing to a time, date, and place set by the court to afford opportunity for parties to consult with their attorneys; and

(2)    The court shall then receive the answer, response, denial, or admission of the parties and, if appropriate, of the child as follows:

(a)    If the petition alleges the child to be abused or neglected, parents, guardian, or custodian of the child may admit the allegations contained in the petition and the court may accept the admissions if the court is satisfied there is a factual basis for them;

(b)    If the petition alleges a child to be in need of supervision, parents, guardian, or custodian of the child and the child may admit the allegations contained in the petition and the court may accept the admissions if the court is satisfied there is a factual basis for them;

(c)    If the petition alleges the child to be delinquent, the child may admit the allegations contained in the petition and the court may accept the admission if the court is satisfied there is a factual basis for them.

Source: SL 1991, ch 217, § 67.

26-7A-55. Petition admitted to by all parties--Dispositional hearing--Petition not admitted to--Adjudicatory hearing--Interim order for temporary custody.

If all necessary parties admit the allegations contained in the petition and the court accepts the admissions, the court may find, conclude and make a decision as to adjudication of the child under the applicable provisions of chapter 26-8A, 26-8B, or 26-8C. The court may then proceed with the dispositional phase of the proceedings without conducting a formal adjudicatory hearing on the petition with the concurrence of all parties. However, at the request of any party or if required by the court, the court shall set a later time and date for the dispositional hearing. The court shall then determine interim dispositional arrangements concerning the child and the parties.

If the petition is not admitted by all necessary parties, including the child, if appropriate, or if the petition is denied by any necessary party or the child, if appropriate, the court shall proceed with the adjudicatory hearing on the petition, if notice has been given as required by § 26-7A-15.1, if applicable, or schedule the adjudicatory hearing for a later time and date.

If the advisory hearing is adjourned and continued or if the advisory hearing is completed and the adjudicatory hearing on the petition is scheduled for a later time and date, the court shall make an interim order regarding temporary custody of the child as determined by the court.

Source: SL 1991, ch 217, § 67; SL 2005, ch 139, § 3.

26-7A-56. Rules of procedure and evidence apply to adjudicatory hearings--Rules for other hearings prescribed by court.

Except as otherwise provided in this chapter and related chapters 26-8A, 26-8B, and 26-8C, the rules of civil procedure and the rules of evidence apply to adjudicatory hearings. All other hearings shall be conducted under rules prescribed by the court. The rules may be designed by the court to inform the court fully of the exact status of the child and to ascertain the history, environment, and the past and present physical, mental, and moral condition of the child and the child's parents, guardian, and custodian, as may be necessary or appropriate to enable the court to determine suitable disposition of the child according to the least restrictive alternative available in keeping with the child's best interests and with due regard for the rights and interests of the parents, guardian, custodian, the public, and the state.

Source: SL 1991, ch 217, § 68.

26-7A-57. Discovery--"Respondent" defined--"Child" defined.

Sections 26-7A-58 to 26-7A-73, inclusive, relate to discovery in proceedings during the adjudicatory and dispositional phases under this chapter and chapters 26-8A, 26-8B, and 26-8C. In these sections, the term "respondent" means the child's parents, guardian, or custodian or any other interested party other than the Department of Social Services, court services, and the state, and the term "child" means the child who is the subject of the proceedings.

Source: SL 1991, ch 217, § 69.

26-7A-58. Inspection by respondent or child of statements made by any respondent or child.

On the written request of a respondent or a child, the state's attorney shall permit the respondent or child to inspect and copy or photograph any relevant written or recorded statements made by any respondent or child or copies of such statements in the possession, custody, or control of the state, the existence of which is known or by the exercise of due diligence may become known to the state's attorney and the substance of any oral statement which was made by any respondent or child in response to interrogation by any person then known to the respondent or child to be an employee of the state or of a department or agency of the state and which the state's attorney intends to offer in evidence at the hearing.

Source: SL 1991, ch 217, § 69A.

26-7A-59. Request for copy of prior order of adjudication or final decree of disposition.

On the written request of a respondent or a child, the state's attorney shall furnish to the respondent or child a copy of any prior order of adjudication or final decree of disposition affecting the party in any prior proceedings in the county involving the party that related to abused or neglected children, children in need of supervision, or delinquent children that is in the possession, custody, or control of the state's attorney, the existence of which is known or by the exercise of due diligence may become known to the state's attorney.

Source: SL 1991, ch 217, § 69B.

26-7A-60. Right to inspect, copy, or photograph books, papers, documents, photographs, tangible objects, buildings, or places.

On the written request of a respondent or a child, the state's attorney shall permit the respondent or child to inspect and copy or photograph books, papers, documents, photographs, tangible objects, buildings, or places, or copies or portions of them which are in the possession, custody, or control of the state's attorney and which are material to the preparation of the respondent's or child's case, which are intended for use by the state's attorney as evidence in chief at the hearing, or which were obtained from or belong to the respondent or child.

Source: SL 1991, ch 217, § 69C.

26-7A-61. Right of respondent or child to inspect, copy, or photograph results or reports of physical or mental examinations and scientific tests or experiments.

On the written request of a respondent or a child, the state's attorney shall permit the respondent or child to inspect and copy or photograph any results or reports of physical or mental examinations and of scientific tests or experiments, or copies of them, which are in the possession, custody, or control of the state's attorney, the existence of which is known or by the exercise of due diligence may become known to the state's attorney, and which are material to the preparation of the case of the respondent or child or are intended for use by a state's attorney as evidence in chief at the hearing.

Source: SL 1991, ch 217, § 69D.

26-7A-62. Inspection of internal documents of state prohibited--Exceptions--Inspection of statements of state's witnesses prohibited--Exceptions.

Except as provided in §§ 26-7A-58, 26-7A-59, and 26-7A-61 the discovery or inspection of reports, memoranda, or other internal documents made by the state's attorney or other employees of the state or any department or agency of the state in connection with the investigation or litigation of the case is not authorized. The discovery or inspection of statements made by witnesses or prospective witnesses of the state or any department or agency of the state is not authorized except as provided in §§ 26-7A-64 to 26-7A-66, inclusive.

Source: SL 1991, ch 217, § 69E.

26-7A-63. Statement of state's witness or prospective witness not subject to discovery until witness has testified.

In any proceedings under this chapter and chapters 26-8A, 26-8B, and 26-8C, no statement in the possession of the state's attorney which was made by a witness or prospective witness of the state or any department or agency of the state, other than a respondent or a child, may be the subject of subpoena, discovery, or inspection until the witness has testified on direct examination in the adjudicatory hearing.

Source: SL 1991, ch 217, § 69F.

26-7A-64. Examination upon request of statement by state's witness relating to subject matter of witness' testimony.

After a witness called by the state's attorney has testified on direct examination, the court shall, on the motion of a respondent or a child, order the state's attorney to produce any statement, as defined in § 26-7A-67, of the witness in the possession of the state's attorney which relates to the subject matter on which the witness has testified. If the entire contents of any statement relate to the subject matter of the testimony of the witness, the court shall order it to be delivered directly to the respondent or the child for examination and use by the party.

Source: SL 1991, ch 217, § 69G.

26-7A-65. Excise of nonsubject matter related material from witness' statement to be produced--Appeal.

If the state's attorney claims that any statement ordered to be produced under §§ 26-7A-63 to 26-7A-67, inclusive, contains matter which does not relate to the subject matter of the testimony of the witness, the court shall order the state's attorney to deliver the statement for the inspection of the court in camera. Upon delivery the court shall excise the portions of the statement which do not relate to the subject matter of the witness. With the material excised, the court shall direct delivery of the statement to the respondent or child for the party's use. If, pursuant to this procedure, any portion of the statement is withheld from the respondent or the child, the respondent or the child objects to the withholding, and the hearing proceeds to an adjudication of the child, the entire text of the statement shall be preserved by the state's attorney. If the respondent or the child appeals, the entire statement shall be made available to the appellate court for the purpose of determining the correctness of the ruling of the trial judge. When any statement is delivered to a respondent or a child pursuant to this section, the court, on application of the respondent or the child, may recess proceedings in the adjudicatory hearing for the time it determines to be reasonably required for the examination of the statement by the respondent or the child and the party's preparation for its use in the hearing.

Source: SL 1991, ch 217, § 69H.

26-7A-66. Witness' testimony struck from record upon state's attorney's election not to deliver statement to respondent or child.

If the state's attorney elects not to comply with an order of the court under §§ 26-7A-64 and 26-7A-65 to deliver to the respondent or the child any statement or portion of a statement that the court directs, the court shall strike from the record the testimony of the witness and the hearing shall proceed unless the court in its discretion determines otherwise.

Source: SL 1991, ch 217, § 69I.

26-7A-67. "Statement" defined.

The term, "statement," as used in §§ 26-7A-64 to 26-7A-66, inclusive, in relation to any witness called by the state's attorney, means:

(1)    A written statement made by the witness and signed or otherwise adopted or approved by the witness;

(2)    A stenographic, mechanical, electrical, or other recording, or a transcription of a recording, which is a substantially verbatim recital of an oral statement made by the witness and recorded contemporaneously with the making of the oral statement; or

(3)    A summary of an oral declaration made by someone other than the witness that has been reduced to writing.

Source: SL 1991, ch 217, § 69J.

26-7A-68. State's attorney may inspect, copy, or photograph documents or objects in possession of respondent or child.

If a respondent or a child requests disclosure under § 26-7A-60 and the state's attorney complies with the request, the respondent or the child, on the written request of the state's attorney, shall permit the state's attorney to inspect and copy or photograph books, papers, documents, photographs, tangible objects, or copies or portions of them which are in the possession, custody, or control of the respondent or the child and which the respondent or the child intends to introduce as evidence in chief at the hearing.

Source: SL 1991, ch 217, § 69K.

26-7A-69. State's attorney's right to inspect, copy, or photograph physical or mental examination results and reports of scientific tests or experiments.

If a respondent or a child requests disclosure under § 26-7A-61 and the state's attorney complies with the request, the respondent or the child, on the written request of the state's attorney, shall permit the state's attorney to inspect and copy or photograph any results or reports of physical or mental examinations and of scientific tests or experiments made in connection with the particular case, or copies of them, which are in the possession or control of the respondent or the child and which the respondent or the child intends to introduce as evidence in chief at the hearing or which were prepared by a witness whom the respondent or the child intends to call at the hearing when the results or reports relate to testimony of the witness.

Source: SL 1991, ch 217, § 69L.

26-7A-70. State's attorney prohibited from inspection of internal documents made by respondent or child or attorneys in connection with case.

Sections 26-7A-68 and 26-7A-69 authorize discovery or inspection of scientific or medical reports and do not authorize the discovery or inspection of reports, memoranda, or other internal case presentation documents made by the respondent or the child or their attorneys or agents in connection with the investigation or presentation of their case or of statements made by the respondent or the child, or by witnesses or prospective witness for the state or any respondent or child to any respondent or the child or their agents or attorneys.

Source: SL 1991, ch 217, § 69M.

26-7A-71. Notice of additional evidence.

If, prior to or during the hearing, a party discovers additional evidence or material previously requested or ordered which is subject to discovery or inspection under §§ 26-7A-58 to 26-7A-70, inclusive, the party shall promptly notify the other parties or their attorneys or the court of the existence of the additional evidence or material.

Source: SL 1991, ch 217, § 69N.

26-7A-72. Court order upon discovery motion.

On a sufficient showing the court may at any time order that the discovery or inspection be denied, restricted, or deferred or may make an order as is appropriate. On the motion of a party, the court may permit the party to make the showing, in whole or in part, in the form of a written statement to be inspected by the judge alone. If the court enters an order granting relief following the ex parte showing, the entire text of the party's statement shall be sealed and preserved in the records of the court to be made available to the appellate court in the event of an appeal.

Source: SL 1991, ch 217, § 69O.

26-7A-73. Failure of party to comply with discovery provisions.

If, at any time during the course of a proceeding, it is brought to the attention of a court that a party has failed to comply with an applicable discovery provision of §§ 26-7A-58 to 26-7A-71, inclusive, the court may order the party to permit the discovery or inspection, grant a continuance or prohibit the party from introducing evidence not disclosed or the court may enter another order that the court considers just under the circumstances. The court may specify the time, place, and manner of making the discovery and inspection and may prescribe just terms and conditions.

Source: SL 1991, ch 217, § 69P.

26-7A-74. Depositions--"Respondent" defined--"Child" defined.

Sections 26-7A-75 to 26-7A-81, inclusive, relate to depositions in proceedings during the adjudicatory and dispositional phases under this chapter and chapters 26-8A, 26-8B, and 26-8C. In these sections, the term "respondent" means the child's parents, guardian, or custodian or any other interested party other than Department of Social Services, court services, and the state, and the term "child" means the child who is the subject of the proceedings.

Source: SL 1991, ch 217, § 70.

26-7A-75. Depositions only as provided by statute or rule--Motion by party due to exceptional circumstances.

Depositions may not be ordered for discovery or any other purpose except as specifically provided by statute or rule. If due to exceptional circumstances it is in the interests of justice that the testimony of a prospective witness of a party be taken and preserved for use at the hearing, the court may upon motion of the party and notice to the parties order that the testimony of the witness be taken by deposition and that any designated book, paper, document, record, recording, or other material not privileged be produced at the same time and place.

Source: SL 1991, ch 217, § 70A.

26-7A-76. Notice of deposition--Right of child or respondent to be present--Waiver.

The party at whose instance a deposition is to be taken in the state shall give to every party reasonable written notice of the time and place for taking the deposition. The notice shall state the name and address of each person to be examined. Any respondent or child has the right to be present at the examination upon request subject to terms fixed by the court, but the failure of any respondent or child, without good cause shown, to appear after notice is a waiver of that right and of any objection to the taking and use of the deposition based upon that right.

Source: SL 1991, ch 217, § 70B.

26-7A-77. Manner of taking and filing deposition--Examination and cross examination.

Subject to any additional conditions set by the court, a deposition shall be taken and filed in the manner provided in civil actions except as otherwise provided in §§ 26-7A-75 to 26-7A-81, inclusive. The scope and manner of examination and cross-examination shall be the same as would be allowed in the hearing itself. The state's attorney shall make any statement of the witness being deposed which is in the possession of the state's attorney or to which the respondents or the child would be entitled at the hearing available to the respondents and the child or their respective attorneys for examination and use at the taking of a deposition.

Source: SL 1991, ch 217, § 70C.

26-7A-78. Deposition enclosed, sealed, and endorsed--Transmitted to county clerk.

A deposition taken pursuant to this section shall be enclosed, sealed, and endorsed with the title of the action and the name of the officer taking the deposition. The officer taking the deposition shall address and transmit the deposition to the clerk of courts of the county where the action is being conducted. The deposition shall remain under seal until it is opened by the clerk of courts pursuant to the order of the court, the request of any party to the action or attorney for the party, or the request of the state's attorney.

Source: SL 1991, ch 217, § 70D.

26-7A-79. Use of depositions.

At any hearing, a part or all of a deposition, so far as otherwise admissible under the rules of evidence, may be used if it appears:

(1)    That the deponent is dead;

(2)    That the deponent is out of the state, unless it appears that the absence of the deponent was procured by the party offering the deposition;

(3)    That the deponent is unable to attend or testify because of illness or infirmity;

(4)    That the deponent is confined in jail or prison outside the state; or

(5)    That such exceptional circumstances exist as to make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court, to allow the deposition to be used, and the offering party has made application and given notice.

If a deposition has been taken, it may be read in any phase of the same action and on any hearing of the action. Any deposition may also be used by any party for the purpose of contradicting or impeaching the testimony of the deponent as a witness. If only a part of a deposition is offered in evidence by a party, an adverse party may require the offering party to offer all of the deposition that is relevant to the part offered and any party may offer other parts.

Source: SL 1991, ch 217, § 70E.

26-7A-80. Objections to deposition testimony or evidence--Basis.

Objections to deposition testimony or evidence or a part of it and the grounds for the objections shall be stated at the time of the taking of the deposition. Objections to receiving in evidence a deposition or a part of a deposition may be made on the basis that the conditions of § 26-7A-79 are no longer applicable.

Source: SL 1991, ch 217, § 70F.

26-7A-81. Deposition by agreement of parties not precluded.

Nothing in §§ 26-7A-75 to 26-7A-80, inclusive, precludes the taking, either orally or through written questions, of a deposition for use at a hearing or the use of a deposition by agreement of the parties with the consent of the court.

Source: SL 1991, ch 217, § 70G.

26-7A-82. Adjudicatory hearing following advisory hearing--Support of evidence.

Following an advisory hearing on a petition, the court shall conduct an adjudicatory hearing. The court shall consider whether the allegations of the petition are supported by clear and convincing evidence concerning an alleged abused or neglected child or whether the allegations of the petition are supported by evidence beyond a reasonable doubt concerning an alleged child in need of supervision or an alleged delinquent child. In cases concerning abused or neglected children, evidence that child abuse has occurred is prima facie evidence that the child is an abused or neglected child regardless of allegations contained in the petition, and such evidence is sufficient to support an adjudication of the child as an abused or neglected child.

Source: SL 1991, ch 217, § 71B.

26-7A-83. Evidence considered at adjudicatory hearing--Appearance of party preparing reports and materials used as evidence.

Written reports and other material and information relating to the child's mental, physical, and social history may be received and considered by the court at the adjudicatory hearing together with other evidence relating to the allegations of the petition or circumstances then affecting the child. If requested by the child or the child's parents, guardian, custodian, or other interested party appearing as respondent in the action, the court shall require the party who prepared the reports or material to appear as a witness and be subject to both direct and cross-examination. In the absence of a request regarding the appearance of the party preparing the reports or material, the court may order the party who prepared the report or material to appear and testify if the court finds that interests of the child or the child's parent, guardian, or custodian or any other respondent to the proceedings so require.

Source: SL 1991, ch 217, § 71C.

26-7A-84. Order to amend petition.

The court, on the motion of the state, the child, or any respondent or on the court's own motion, may order the petition to be amended to conform to the evidence. If amendment of the petition results in a substantial departure from the original allegations contained in the petition, the court shall continue the adjudicatory hearing on the motion of any interested party. The court may grant a continuance on the court's own motion if the court finds it to be in the best interests of the child or any other party to the proceeding.

Source: SL 1991, ch 217, § 71D.

26-7A-85. Child with mental illness or intellectual disability--Suspension of hearing--Examination.

If it appears from the evidence presented at the adjudicatory hearing that the child may be mentally ill or have an intellectual disability, as the terms are defined in Title 27A or Title 27B, the court may suspend the adjudicatory hearing and may:

(1)    Order that the child be examined by a qualified mental health professional. The court may place the child in a hospital or other suitable facility for the purposes of the examination; or

(2)    Recommend to the state that the proceedings be conducted as provided in applicable chapters of Title 27A or Title 27B.

Even if the court exercises some of the authority in this section, the court may proceed with the adjudicatory hearing and dispositional hearing.

Source: SDC 1939, § 43.0327 as added by SL 1968, ch 164, § 16; SL 1991, ch 217, § 75B; SDCL § 26-8-22.8; SL 2013, ch 125, § 5.

26-7A-86. Final order when allegations not supported by evidence--Additional findings and conclusions for abused or neglected child--Appeal.

If the court finds the allegations of the petition or amended petition are not supported by clear and convincing evidence in cases concerning an alleged abused or neglected child or are not supported by evidence beyond a reasonable doubt in cases concerning an alleged child in need of supervision or an alleged delinquent child, the court shall enter a final order accordingly and the action shall be terminated. In the case of an alleged abused or neglected child, the court shall enter findings and conclusions in addition to the final order. On termination of the action, the child, the child's parents, guardian, or custodian and other parties respondent shall be released from any restriction or temporary order previously issued by the court and from the jurisdiction of the court. The final order terminating the action is an appealable order of the court by the state or by any alleged abused or neglected child or any party respondent not in agreement with the nonadjudication of the alleged abused or neglected child and resulting termination of the action.

Source: SDC 1939, § 43.0327 as added by SL 1968, ch 164, § 16; SL 1971, ch 166, § 4; SL 1991, ch 217, § 76B; SDCL, § 26-8-22.9; SL 1992, ch 183, § 3.

26-7A-87. Adjudication subject to intermediate appeal--Dispositional proceedings--Interim dispositional decree.

If the court finds the allegations of the petition are supported by clear and convincing evidence in cases concerning an alleged abused or neglected child or are supported by evidence beyond a reasonable doubt in cases concerning an alleged child in need of supervision or an alleged delinquent child, the court shall adjudicate the child accordingly and shall issue findings of fact, conclusions of law and an order of adjudication stating the child to be an abused or neglected child as defined in chapter 26-8A, a child in need of supervision as defined in chapter 26-8B, or a delinquent child as defined in chapter 26-8C. Written findings of fact and conclusions of law are only required in delinquency or child in need of supervision adjudicatory proceedings if there is a contested evidentiary hearing or if the disposition is a commitment to the Department of Corrections. The order of adjudication is an intermediate order and is subject to intermediate appeal with the permission of the court according to the rules of procedure governing civil appeals.

The court shall proceed with the dispositional phase of the proceedings and shall issue an order setting the time, date, and place of the initial dispositional hearing and prescribing notice of the hearing. However, the court may proceed immediately with the initial dispositional hearing with the consent of the state, the child and the child's parents, guardian, or custodian or other parties who are respondents in the action.

On completion of the adjudicatory hearing resulting in adjudication of the child, the court may issue an interim dispositional decree governing custody, placement, care, shelter, or detention of the child as determined by the court pending the initial dispositional hearing and any continuance of it.

Source: SDC 1939, § 43.0327 as added by SL 1968, ch 164, § 16; SL 1971, ch 166, § 5; SL 1983, ch 210; SL 1991, ch 217, § 77B; SDCL, § 26-8-22.10; SL 2021, ch 117, § 1.

26-7A-88. Examination, investigation, and reports of adjudicated child before final disposition.

After adjudication of a child as an abused or neglected child, a child in need of supervision or a delinquent child and before final disposition of the case, the court may require the following examinations and investigations and reports of them:

(1)    The court may order the child's parents, guardian, custodian, any other party respondent, or any relative of the child who might be considered as a potential caretaker of the child on disposition to submit to psychological, psychiatric or medical examination and evaluation by a qualified mental health professional or physician and submit the report to the court. The order may be issued by the court on the motion of the state, the child, any interested party, or on the court's own motion. The order directing the examination and evaluation shall state the time, place, manner, conditions, and scope of the examination and evaluation to be made and the person or persons by whom it is to be made; and

(2)    The court may order homestudy investigations and reports of the investigations submitted to the court concerning the child's parents, guardian, custodian, any other party respondent, or relative of the child who might be a potential caretaker of the child on disposition. The order for a homestudy investigation and a report of the investigation shall generally state the conditions and scope of the investigation considered necessary or appropriate by the court under the circumstances.

Reports received by the court pursuant to this section may be released by the court to attorneys of record for the parties and may be received by the court as evidence in the dispositional phase of the proceeding.

Source: SL 1991, ch 217, § 78.

26-7A-89. Continuance of case--Custody of child pending disposition--Term of continuance.

At any time after the filing of the petition and before the final disposition of the case, the court may continue the case from time to time. The court may issue orders it considers necessary allowing the child to remain in the custody of the child's parents, guardian, or custodian according to terms and conditions required by the court or placing the child in temporary custody. Any continuation of the case by the court may extend no longer than three months between hearings.

Source: SDC 1939, § 43.0309; SL 1961, ch 212; SL 1968, ch 164, § 7; SL 1991, ch 217, § 79B; SDCL, § 26-8-23.

26-7A-90. Evidence heard at dispositional hearing--Interim decree--Final decree.

After adjudication, the court shall conduct dispositional hearings and consider evidence regarding proper disposition of the child best serving the interests of the child with due regard to the rights and interests of the child's parents, guardian, custodian, other parties respondent, the public, and the state. Dispositional evidence may include social study reports, mental and medical examination and evaluation reports, homestudy investigation reports, and any other evidence related to appropriate disposition of the child.

Following the dispositional hearing, the court shall issue an interim decree of disposition. During the dispositional phase, the court shall balance the rights and interests of the child and the respective parties, including the public and the state.

On completion of the final dispositional hearing, the court shall issue findings of fact, conclusions of law, and a final decree of disposition. Written findings of fact and conclusions of law are only required in delinquency or child in need of supervision dispositional proceedings if there is a contested evidentiary hearing or if the disposition is a commitment to the Department of Corrections. The decree is the final order of the court for the purpose of an appeal by any party according to the rules of procedure governing civil appeals.

Source: SDC 1939, § 43.0327 as added by SL 1968, ch 164, § 16; SL 1991, ch 217, § 81B; SDCL, § 26-8-22.11; SL 2021, ch 117, § 2.

26-7A-91. Notice of entry of order of adjudication or final decree--Service of publication.

Notice of entry of an order of adjudication or a final decree of disposition in any case shall be served on the parties to the action. The notice of entry may be served by publication in the same manner as service of summons in the actions. If notice of entry is served by publication, the service shall be considered completed five days after the date of publication of the notice of entry. Time for appeal shall commence on the next day following the date of completed service of the notice of entry.

Source: SL 1991, ch 217, § 84.

26-7A-92. Guardian of placed child.

In every case under this chapter and chapters 26-8B and 26-8C, if the child is committed to the Department of Corrections, the court shall appoint the secretary of corrections as guardian of the person of the child. If the court places the child at the Human Services Center, the court shall appoint the secretary of the Department of Social Services as guardian of the person of the child.

Source: SDC 1939, §§ 43.0311, 43.0312; SL 1991, ch 217, § 86B; SDCL § 26-8-38; SL 1996, ch 172, § 6; SL 1998, ch 159, § 1; SL 2011, ch 1 (Ex. Ord. 11-1), § 163, eff. Apr. 12, 2011.

26-7A-93. Placement subject to availability of space.

No child governed by provisions of this chapter or chapter 26-8A, 26-8B, or 26-8C may be placed in any group home, residential care facility, group care institution, or any other facility unless the agency, department, association, or corporation operating the facility determines that space is available.

Source: SL 1974, ch 179, § 5; SL 1991, ch 217, § 87B; SDCL, § 26-8-40.6.