CHAPTER 26-8B
CHILDREN IN NEED OF SUPERVISION
26-8B-1 Purpose of chapter.
26-8B-2 Child in need of supervision defined.
26-8B-3 Circumstances requiring release--Circumstances allowing detention--Length of detention.
26-8B-4 Community response team recommendation--Plan of disposition.
26-8B-5 Medical or mental health care for child.
26-8B-6 Decree of disposition--Contents--Findings.
26-8B-7 Limit of temporary custody.
26-8B-8 Terms and conditions of probation--Duration--Written statement and explanation required--Review--Release--Modification.
26-8B-9 Provisions for violation of terms and conditions.
26-8B-1. Purpose of chapter.
It is the purpose of this chapter, in conjunction with chapter 26-7A, to establish an effective state and local system for children in need of supervision, including a focus on community-based rehabilitation.
Source: SL 1991, ch 217, § 140; SL 2015, ch 152, § 28.
26-8B-2. Child in need of supervision defined.
For purposes of this chapter, a child in need of supervision is a child:
(1) Of compulsory school age who is habitually absent from school without legal excuse;
(2) Who has run away from home or is otherwise beyond the control of the child's parent, guardian, or custodian;
(3) Whose behavior or condition endangers the child's own welfare or the welfare of others;
(4) Who has violated any federal or state law or regulation or local ordinance for which there is not a penalty of a criminal nature for an adult, other than a petty offense;
(5) Who has violated § 32-23-21 or 35-9-2; or
(6) Who engages in prostitution by offering to engage in sexual activity for a fee or other compensation.
Source: SDC 1939, § 43.0301 (5) as enacted by SL 1968, ch 164, § 1; SL 1991, ch 217, § 141B; SDCL § 26-8-7.1; SL 1994, ch 219, § 2; SL 1996, ch 179, § 1; SL 1998, ch 215, § 3; SL 2003, ch 149, § 4; SL 2004, ch 218, § 2; SL 2019, ch 109, § 1; SL 2024, ch 99, § 1.
26-8B-3. Circumstances requiring release--Circumstances allowing detention--Length of detention.
An apparent or alleged child in need of supervision taken into temporary custody by a law enforcement officer prior to a temporary custody hearing shall be released to the child's parents, guardian, or custodian unless the parents, guardian, or custodian cannot be located or in the judgment of the intake officer are not suitable to receive the child, in which case the child shall be placed in shelter. A child may be placed in detention for no more than twenty-four hours, excluding Saturdays, Sundays, and court holidays, if the intake officer finds that the parents, guardian, or custodian are not available or are not suitable to receive the child, and finds at least one of the following circumstances exists:
(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 person under 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; or
(5) There are specific, articulated circumstances which justify the detention for the protection of the child from potentially immediate harm to the child or to others.
The shelter or detention authorized shall be the least restrictive alternative available. The child may be held in detention up to an additional twenty-four hours following the temporary custody hearing pending transfer to shelter or release.
If the child is accused of or has been found in violation of a valid court order, the child may be placed in detention for more than twenty-four hours, if a temporary custody hearing, pursuant to § 26-7A-14, is held within twenty-four hours of the child being placed in a detention facility, an interview is conducted with the child, a written assessment of the child's immediate needs is provided at the temporary custody hearing, and a written order is issued that identifies the violated court order, determines detention is the best available placement, specifies the length of time the child is to be held in detention, and outlines the plan for release of the child from detention. The interview and assessment may be conducted by law enforcement, states attorney, court services, or other public employee. The child may not be held in detention more than seven days.
If the child is being held for another jurisdiction as a parole or probation violator, as runaway or as a person under court-ordered detention, the child may be placed in detention for more than twenty-four hours, and up to seven days, if a temporary custody hearing, pursuant to § 26-7A-14, is held within twenty-four hours of the child being placed in a detention facility.
Source: SL 1989, ch 228, § 4; SL 1991, ch 217, § 143B; SDCL Supp, § 26-8-23.4; SL 1992, ch 183, § 1; SL 1994, ch 219, § 3; SL 1995, ch 148, § 4; SL 1996, ch 172, § 18; SL 1997, ch 158, § 4; SL 2003, ch 149, § 5; SL 2021, ch 120, § 1.
26-8B-4. Community response team recommendation--Plan of disposition.
If a community response team as defined in § 26-8D-1 has been established, following any advisory or initial hearing, the court may seek recommendations for community-based interventions and rehabilitative resources from the team. Following adjudication of a child in need of supervision and prior to any disposition to the Department of Corrections, the court may seek a recommendation for a viable community alternative disposition from the team. If the team is unable to provide any recommendation within seven days of the referral, the court may exercise its discretion and make a disposition decision without the input of the team, pursuant to § 26-8B-6. In all cases, the court may adopt the recommendation of the team in part, in full, or reject the recommendation of the team in its entirety.
Following adjudication of a child as a child in need of supervision, the court may continue the case and may require a court services officer to present to the court a plan of disposition.
Source: SL 1974, ch 179, § 3; SL 1977, ch 208, § 1; SL 1991, ch 217, § 144B; SDCL § 26-8-40.3; SL 2015, ch 152, § 17, eff. Jan. 1, 2016; SL 2023, ch 87, § 3.
26-8B-5. Medical or mental health care for child.
Following adjudication of a child as a child in need of supervision, the court may order the child to be examined or treated by a physician or qualified mental health professional or to receive other special care and may place the child in a hospital or other suitable facility for such purposes.
Source: SL 1974, ch 179, § 7; SL 1991, ch 217, § 145B; SDCL, § 26-8-40.4.
26-8B-6. Decree of disposition--Contents--Findings.
If a child has been adjudicated as a child in need of supervision, the court shall enter a decree of disposition according to the least restrictive alternative available in keeping with the best interests of the child. The decree shall contain one or more of the following:
(1) The court may place the child on probation pursuant to § 26-8B-8 or under protective supervision in the custody of one or both parents, guardian, custodian, relative, or another suitable person under conditions imposed by the court;
(2) The court may require as a condition of probation that the child participate in a supervised community service program, provided the child is not placed in a detention facility and is not deprived of the schooling that is appropriate to the child's age, needs, and specific rehabilitative goals. The supervised community service program shall be of a constructive nature designed to promote rehabilitation, shall be appropriate to the age level and physical ability of the child, and shall be combined with counseling by a court services officer or other guidance personnel. The supervised community service program assignment shall be made for a period of time consistent with the child's best interests, but may not exceed ninety days;
(3) If the court finds that the child has violated a valid court order, the court may place the child in a detention facility for not more than seven days, including any period of temporary custody pursuant to § 26-8B-3, for purposes of disposition if:
(a) The child is not deprived of the schooling that is appropriate for the child's age, needs, and specific rehabilitative goals;
(b) The child had a due process hearing before the order was issued; and
(c) A plan of disposition from a court services officer is provided to the court.
The issued order must identify the violated court order, determine detention is the best available placement, specify the length of time the child is to be held in detention, and outline the plan for release of the child from detention;
(4) The court may require the child to pay restitution, as defined in § 23A-28-2 and under conditions set by the court if payment can be enforced without serious hardship or injustice to the child;
(5) The court may place a child in an alternative educational program;
(6) The court may order the child to be examined and treated at the Human Services Center;
(7) The court may impose a fine not to exceed five hundred dollars;
(8) The court may order the suspension or revocation of the child's right to apply for a driving privilege, suspend or revoke an existing driving privilege, or restrict the privilege in such manner as the court sees fit or as required by § 32-12-52.4, including requiring that financial responsibility be proved and maintained;
(9) The court may assess or charge the same costs and fees as permitted by §§ 16-2-41, 23-3-52, 23A-27-26, 23A-28B-42, and 23A-27-27 against the child, parent, guardian, custodian, or other party responsible for the child; or
(10) The court may only commit a child to the Department of Corrections if the judge finds that:
(a) No viable alternatives exist;
(b) The Department of Corrections is the least restrictive alternative; and
(c) The court finds from evidence presented at the dispositional hearing or from the pre-dispositional report that the youth presents a significant risk of physical harm to another person.
Any finding made pursuant to this section shall be made in the written decree.
After disposition, but prior to placement in a juvenile correctional facility, a state interagency team comprised of representatives from the Department of Human Services, the Department of Social Services, the Department of Education, the Department of Corrections, and the Unified Judicial System shall make a written finding that placement at a Department of Corrections facility is the least restrictive placement commensurate with the best interests of the child. Subsequent placement in any other Department of Corrections facility may be authorized without an interagency review.
No adjudicated child in need of supervision may be incarcerated in a detention facility except as provided in subdivision (3) of this section and § 26-7A-20.
Source: SDC 1939, § 43.0319 as enacted by SL 1968, ch 164, § 13; SL 1973, ch 171; SL 1974, ch 179, § 8; SL 1982, ch 200, § 3; SL 1990, ch 196, § 2; SDCL §§ 26-8-39.2, 26-8-40.1; SL 1991, ch 217, § 147B; SDCL § 26-8-39.2; SDCL Supp, § 26-8-40.1; SL 1994, ch 219, § 6; SL 1995, ch 151; SL 1996, ch 172, § 19; SL 1996, ch 180; SL 1998, ch 163, § 2; SL 2000, ch 123, § 1; SL 2001, ch 143, § 1; SL 2003, ch 149, § 6; SL 2003, ch 272 (Ex. Ord. 03-1), § 63; SL 2004, ch 182, § 1; SL 2005, ch 120, § 129; SL 2007, ch 163, § 3; SL 2008, ch 139, § 2; SL 2015, ch 152, § 29, eff. Jan. 1, 2016; SL 2016, ch 146, § 7, eff. Mar. 25, 2016; SL 2021, ch 120, § 2.
26-8B-7. Limit of temporary custody.
An alleged or adjudicated child in need of supervision may not be held in temporary custody for more than ninety days beginning with the date the child is first taken into custody unless at the ninetieth day the child is in the process of receiving treatment or care which has a specified duration. In that case the temporary custody may be extended to the end of the treatment or care.
Source: SL 1991, ch 217, § 147C.
26-8B-8. Terms and conditions of probation--Duration--Written statement and explanation required--Review--Release--Modification.
The terms and conditions of probation of a child in need of supervision shall be specified by rules or orders of the court and by a court services officer.
The duration of juvenile probation shall be specified by order of the court but may not exceed six months unless:
(1) The child is placed in the intensive juvenile probation program; or
(2) The child's probation is extended as provided under this section.
If the child is placed on intensive juvenile probation, the duration of probation ordered by the court may be up to twelve months.
If the child is placed on juvenile probation, a court services officer may request two extensions up to six months each or one extension up to six months for intensive juvenile probation. The court may authorize the same in accordance with Unified Judicial System procedure if the extension is necessary for the child to complete evidence-based treatment as required by the case plan. If evidence-based treatment is not available, an extension may be granted if the youth is engaged in alternative court-approved treatment that will not be completed before the previously ordered term of probation expires.
The total duration of probation, including juvenile intensive probation and extensions in all cases, may not exceed eighteen months unless the court provides written authorization to allow a child to complete evidence-based treatment that will not be completed before probation expires. Probation may not be extended solely to collect restitution. If probation is terminated with restitution owing, Unified Judicial System procedure may govern the collection.
Each child placed on probation shall be given a written statement of the terms and conditions of probation and the probation policy. The terms and conditions, as well as the probation extension policy, shall be explained to the child.
The court shall review the terms and conditions of probation and the progress of each child placed on probation at least once every six months. The court may release a child from probation or modify the terms and conditions of the child's probation at any time, but any child who has complied satisfactorily with the terms, conditions, and duration of probation shall be released from probation and the jurisdiction of the court terminated. If the duration of probation previously prescribed has expired, the court shall release the child from probation and terminate jurisdiction.
Source: DC 1939, § 43.0328 as added by SL 1968, ch 164, § 17; SL 1991, ch 217, § 150B; SDCL § 26-8-60; SL 2015, ch 152, § 30, eff. Jan. 1, 2016; SL 2017, ch 118, § 1.
26-8B-9. Provisions for violation of terms and conditions.
The following provisions apply if the child is alleged to have violated the terms and conditions of probation and a formal petition is filed with the court:
(1) The court shall set a hearing on the alleged violation and shall give five days' notice to the child, to the child's parents, guardian, or custodian, and to any other parties to the proceedings;
(2) The child and the child's parents, guardian, or custodian shall be given a written statement concerning the alleged violation;
(3) The child may be represented by legal counsel at the probation violation hearing and the child is entitled to the issuance of compulsory process for the attendance of witnesses;
(4) If the court finds by a preponderance of the evidence that the child violated the terms and conditions of probation, the court may modify the terms and conditions of probation, revoke probation, or take other action as permitted by this chapter or chapter 26-7A, according to the least restrictive alternative which is in the best interests of the child and the public, except commitment to the Department of Corrections. The court may only commit a child to the Department of Corrections if the court finds that the violation committed constitutes a new law violation and finds that the aggravated circumstances provided in subdivision 26-8B-6(10) exist;
(5) For the purposes of this section, a new law violation is defined as delinquent behavior pursuant to § 26-8C-2, a Class 1 misdemeanor violation of title 32, or a violation of § 32-23-21; and
(6) If the court finds that the child did not violate the terms and conditions of probation as alleged, the court shall dismiss the proceedings and continue the child on probation under the terms, conditions, and duration previously prescribed. If the duration of probation previously prescribed has expired, the court shall release the child from probation and terminate jurisdiction.
Source: SL 1991, ch 217, § 150C; SL 2015, ch 152, § 31, eff. Jan. 1, 2016.
