CHAPTER 26-8C
DELINQUENT CHILDREN
26-8C-1 Purpose of chapter.
26-8C-2 Delinquent child defined.
26-8C-3 Release--Placement in shelter--Circumstances warranting detention.
26-8C-3.1 Risk assessment instrument for statewide use.
26-8C-4 Suspension of adjudication of delinquency--Probation--Revocation of suspension.
26-8C-5 Community response team recommendation--Plan of disposition.
26-8C-6 Court-ordered physical or mental health care for child.
26-8C-7 Decree of disposition--Contents--Findings.
26-8C-8 26-8C-8. Transferred to § 26-7A-93.1
26-8C-9 Limit of temporary custody.
26-8C-10 26-8C-10. Repealed by SL 1996, ch 172, § 22
26-8C-11 Termination of jurisdiction upon successful disposition.
26-8C-12 26-8C-12. Repealed by SL 1992, ch 183, § 7
26-8C-13 26-8C-13. Repealed by SL 1996, ch 172, § 24
26-8C-14 Terms and conditions of probation--Duration--Written statement and explanation required--Review--Release--Modification.
26-8C-15 Provisions for violation of terms and conditions of probation.
26-8C-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 delinquent children including a focus on community-based rehabilitation.
Source: SL 1991, ch 217, § 151; SL 2015, ch 152, § 19.
26-8C-2. Delinquent child defined.
In this chapter and chapter 26-7A, the term "delinquent child" means any child ten years of age or older who, regardless of where the violation occurred, has violated any federal, state, or local law or regulation for which there is a penalty of a criminal nature for an adult, except state or municipal hunting, fishing, boating, park, or traffic laws that are classified as misdemeanors, petty offenses, or any violation of § 32-23-21, 35-9-2, or subdivision 34-46-2(2).
Source: SDC 1939, § 43.0301 (8) as enacted by SL 1968, ch 164, § 1; SL 1973, ch 169, § 1; SL 1974, ch 153, § 45; SL 1976, ch 158, § 43-5; SL 1981, ch 201; SL 1991, ch 217, § 152B; SDCL, § 26-8-7; SL 1994, ch 219, § 1; SL 1996, ch 179, § 2; SL 2000, ch 124, § 1; SL 2003, ch 149, § 7; SL 2004, ch 218, § 3; SL 2024, ch 99, § 2.
26-8C-3. Release--Placement in shelter--Circumstances warranting detention.
An apparent or alleged delinquent child 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 not be placed in detention unless 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 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 serious 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 for 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 under the influence of alcohol, inhalants, or a controlled drug or substance and detention is the least restrictive alternative in view of the gravity of the alleged offense and is necessary for the physical safety of the child, the public, and others;
(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.
The shelter or detention authorized must be the least restrictive alternative available.
Source: SL 1989, ch 228, § 3; SL 1991, ch 217, § 153B; SDCL Supp, § 26-8-23.3; SL 1992, ch 183, § 2; SL 1994, ch 220; SL 1995, ch 148, § 5; SL 1996, ch 172, § 20; SL 2024, ch 98, § 1.
26-8C-3.1. Risk assessment instrument for statewide use.
(a) Generally, juveniles should only be held in secure detention when less restrictive placement alternatives are not appropriate. The standardized South Dakota JDAI Risk Assessment Instrument (RAI) is an objective tool used to assess a variety of risk factors relative to the likelihood that a juvenile will appear in court or re-offend on a delinquent act prior to his/her court appearance. The RAI is based upon best practice standards that have been tested and implemented in other JDAI jurisdictions across the nation. The overall risk score is a guide in making the initial decision whether to detain in secure detention, utilize an alternative to secure detention, or release with or without conditions pending hearing.
(b) As per the authority designated in subdivision 26-7A-1(20), the presiding judge in each circuit shall appoint juvenile detention staff or juvenile reception and intake center staff to serve as intake officers.
(c) The State Court Administrator's Office shall provide statewide training on use of the RAI. After the completion of RAI training, all appointed Intake Officers shall complete the RAI on all detention intakes to distinguish between juveniles who are likely to abscond or commit new crimes and those who are not.
(d) The State Court Administrator's Office shall compile the following data to be collected by any court appointed intake officer: The number of juveniles detained and released shall be reported along with each juvenile's gender, race, ethnicity, age and offense as well as all assessment information including staff decision, overrides and program information.
Source: SL 2015, ch 276 (Supreme Court Rule 15-14), eff. July 1, 2015.
26-8C-4. Suspension of adjudication of delinquency--Probation--Revocation of suspension.
If the court is satisfied that the best interests of the public, justice, and child will be served, the court may, without entering an adjudication of delinquency, with consent of the child, suspend imposition of adjudication of delinquency and place the child on probation under the terms, conditions, and duration required by the court. A court may revoke the suspension at any time during the probationary period and impose an adjudication of delinquency without diminishment or credit for any of the probationary period.
Source: SL 1981, ch 204; SL 1982, ch 28, § 11; SL 1991, ch 217, § 155B; SDCL, § 26-8-39.3.
26-8C-5. Community response team recommendation--Plan of disposition.
Where 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 as a delinquent child 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 disposing court may exercise its discretion and make a disposition decision without the input of the team, pursuant to § 26-8C-7. In each case, 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 delinquent child, 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, § 156B; SDCL § 26-8-40.3; SL 2015, ch 152, § 16, eff. Jan. 1, 2016; SL 2023, ch 87, § 4.
26-8C-6. Court-ordered physical or mental health care for child.
Following adjudication of a child as a delinquent child, the court may order the child to be examined or treated by a physician or a 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, § 157B; SDCL, § 26-8-40.4.
26-8C-7. Decree of disposition--Contents--Findings.
If a child has been adjudicated as a delinquent child, 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 require the child to pay restitution, as defined in subdivision 23A-28-2(4) and under conditions set by the court, if payment can be enforced without serious hardship or injustice to the child;
(2) The court may impose a fine not to exceed one thousand dollars;
(3) The court may place the child on probation under the supervision of a court services officer or another designated individual pursuant to § 26-8C-14;
(4) The court may require a child as a condition of probation to participate in a supervised community service program, if the child is not deprived of the schooling that is appropriate for the child's age, needs, and specific rehabilitative goals. The supervised community service program shall be of a constructive nature designed to promote rehabilitation, appropriate to the age level and physical ability of the child, and shall be combined with counseling by the 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 for not more than ninety days;
(5) The court may place the child at the Human Services Center for examination and treatment;
(6) The court may place the child in a detention facility for not more than ninety days, which may be in addition to any period of temporary custody;
(7) The court may place the child in an alternative educational program;
(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 the manner the court sees fit, including requiring that financial responsibility be proved and maintained;
(9) The court may assess or charge costs and fees 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 alternative exists; and
(b) The Department of Corrections is the least restrictive alternative; and one of the following:
(i) The child is currently adjudicated delinquent for an offense eligible for transfer proceedings pursuant to § 26-11-3.1; the child is currently adjudicated delinquent for a crime of violence pursuant to subdivision 22-1-2(9), sex offense pursuant to § 22-24B-1, felony sexual registry offense pursuant to chapter 22-24B, or burglary in the second degree pursuant to § 22-32-3; or 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;
(ii) The child has been previously adjudicated delinquent for separate delinquent acts, arising out of separate and distinct criminal episodes, three or more times within the preceding twelve-month period; or
(iii) The court finds from evidence presented at the dispositional hearing or from the pre-dispositional report that the child is at high risk for re-offense based on a validated risk assessment, and the child has either had a previous unsuccessful discharge from probation for a felony offense or is on supervised probation for a felony offense; and
(A) The child has been adjudicated for intentional damage to property and the property damage exceeds five thousand dollars; or
(B) The child has been adjudicated for a drug distribution offense that is punishable at least as a Class 4 felony.
Any finding made pursuant to this section shall be made in the written decree.
Source: SDC 1939, § 43.0312; SDCL § 26-8-40; SL 1968, ch 164, § 9; SL 1974, ch 179, § 9; SDCL Supp, § 26-8-39.1; SL 1982, ch 200, § 2; SL 1991, ch 217, § 159B; SDCL § 26-8-39; SL 1992, ch 183, § 13; SL 1996, ch 172, § 21; SL 2001, ch 144, § 1; SL 2005, ch 120, § 128; SL 2008, ch 139, § 1; SL 2015, ch 152, § 20, eff. Jan. 1, 2016; SL 2016, ch 146, § 1, eff. Mar. 25, 2016; SL 2020, ch 108, § 1; SL 2023, ch 86, § 1.
26-8C-9. Limit of temporary custody.
An alleged or adjudicated delinquent child 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, § 159C.
26-8C-11. Termination of jurisdiction upon successful disposition.
Upon the successful completion of the dispositional plan of a delinquent child who has not been committed to the Department of Corrections, the court shall terminate its jurisdiction. If the court determines that the dispositional plan has not been successful, the court shall make further disposition of the delinquent child.
Source: SL 1991, ch 217, § 163C; SL 1996, ch 172, § 23.
26-8C-14. Terms and conditions of probation--Duration--Written statement and explanation required--Review--Release--Modification.
The terms and conditions of probation of a delinquent child shall be specified by rules or orders of the court and by court services officers.
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 upon order 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 engage in 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 any extension 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, the 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 extension 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: SDC 1939, § 43.0328 as added by SL 1968, ch 164, § 17; SL 1991, ch 217, § 166B; SDCL § 26-8-60; SL 2015, ch 152, § 23, eff. Jan. 1, 2016; SL 2017, ch 118, § 2.
26-8C-15. Provisions for violation of terms and conditions of probation.
The following provisions apply if the child is alleged to have violated the terms and conditions of probation and a formal allegation of a probation violation is filed:
(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 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 as provided in subdivision 26-8C-7(10) exist;
(5) For the purposes of this section, 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, § 166C; SL 2015, ch 152, § 27, eff. Jan. 1, 2016.
