TITLE 26
MINORS
Chapter
01 Rights And Obligations Of Minors
02 Contracts Of Minors
03 Commission On Children And Youth Repealed
04 Child Welfare Services
05 Child Custody Jurisdiction Repealed
05A Uniform Child Custody Jurisdiction Act Repealed
05B Uniform Child Custody Jurisdiction And Enforcement Act
06 Children's Homes And Welfare Agencies
07 Juvenile Courts Transferred
07A Juvenile Court
08 Dependent Neglected And Delinquent Children Transferred
08A Protection Of Children From Abuse Or Neglect
08B Children In Need Of Supervision
08C Delinquent Children
08D Juvenile Justice--Public Safety Improvement
08E Probation Conditions--Graduated Sanctions And Incentives
09 Contributing To Delinquency Or Dependency
10 Offenses By And Against Minors
11 Criminal Proceedings Against Minors
11A Juvenile Correctional Facilities And Programs
12 Interstate Compact On Juveniles
13 Interstate Compact On Placement Of Children
14 Children's Trust Fund
15 Voluntary Fingerprinting Programs
16 County Interdisciplinary Child Information Teams
17 Missing Children
18 Uniform Child Abduction Prevention Act
26-1-1
Age of minority--Calculation of age.
26-1-2
Unborn child deemed existing person.
26-1-3
Enforcement of minor's rights--Guardian or conservator required.
26-1-4
Minor's liability for wrongs--Restriction on exemplary damages.
26-1-1. Age of minority--Calculation of age.
Minors are natural male persons and natural female persons under eighteen years of age. The periods thus specified must be calculated from the first minute of the day on which persons are born, to the same minute of the corresponding day completing the period of minority.
Source: SDC 1939, § 43.0101; SL 1972, ch 154, § 1.
26-1-2. Unborn child deemed existing person.
A child conceived, but not born, is to be deemed an existing person so far as may be necessary for its interests in the event of its subsequent birth.
Source: SDC 1939, § 43.0102.
26-1-3. Enforcement of minor's rights--Guardian or conservator required.
A minor may enforce his rights by civil action, or other legal proceedings, in the same manner as a person of full age. However, a guardian or conservator must be appointed to conduct the same.
Source: SDC 1939, § 43.0109; SL 1993, ch 213, § 115.
26-1-4. Minor's liability for wrongs--Restriction on exemplary damages.
A minor is civilly liable for a wrong done by him, in like manner as any other person, but cannot be subjected to exemplary damages, unless at the time of the act he was capable of knowing that it was unlawful.
Source: SDC 1939, § 43.0108.
26-2-1
Delegation of power by minor--Contracts relating to property--Account at financial
institution.
26-2-2
Disability of minority removed to permit use of veterans' loan privileges.
26-2-3
Contracts subject to power of disaffirmance.
26-2-4
Power of disaffirmance not applicable to necessaries.
26-2-5
Power of disaffirmance not applicable to contract under express statutory authority.
26-2-6
Time for disaffirmance of contract--Persons authorized to disaffirm--Restoration of
consideration.
26-2-7
Blood donations by minors.
26-2-1. Delegation of power by minor--Contracts relating to property--Account at financial institution.
No minor may give a delegation of power, nor make a contract relating to real property, or any interest therein, or relating to any personal property not in his immediate possession or control. However, a minor's parent, grandparent, uncle, or aunt, if such person is an adult, and a minor's adult sibling may establish an account with a financial institution, and establish a present ownership right in that account. Such adult family member may sign the minor's name for and on behalf of the minor, for the purposes of establishing an account, and such subscription shall constitute a binding agreement between the financial institution, and the named parties to the account.
Source: SDC 1939, § 43.0103; SL 1991, ch 215, § 2.
26-2-2. Disability of minority removed to permit use of veterans' loan privileges.
The disability of minority of any person otherwise eligible for guaranty or insurance of a loan pursuant to chapter 37 of Title 38, United States Code, and of the minor spouse of any eligible veteran irrespective of age, in connection with any transaction entered into pursuant to that chapter in effect on July 1, 1984, is hereby removed, for all purposes in connection with such transaction, including, but not limited to, incurring of indebtedness or obligations and acquiring, encumbering, selling, releasing, or conveying property, or any interest therein, and litigating or settling controversies arising therefrom, if all or part of any obligations incident to such transaction be guaranteed or insured by the administrator of veterans' affairs pursuant to such chapter 37. This section does not impose any other or greater rights or liabilities than would exist if such person and such spouse were under no such disability.
Source: SL 1945, ch 185, § 1; SL 1947, ch 191; SL 1953, ch 221; SDC Supp 1960, § 43.0103-1; SL 1984, ch 12, § 19.
26-2-3. Contracts subject to power of disaffirmance.
Except as specified in § 26-2-1, a minor may make any other contract, subject only to his power of disaffirmance under the provisions of this title, and subject to the provisions of chapter 25-1.
Source: SDC 1939, § 43.0104.
26-2-4. Power of disaffirmance not applicable to necessaries.
A minor cannot disaffirm a contract, otherwise valid, to pay the reasonable value of things necessary for his support, or that of his family, entered into by him if not under the care of a parent or guardian or conservator able to provide for him or them.
Source: SDC 1939, § 43.0106; SL 1993, ch 213, § 116.
26-2-5. Power of disaffirmance not applicable to contract under express statutory authority.
A minor cannot disaffirm an obligation, otherwise valid, entered into by him under the express authority or direction of a statute.
Source: SDC 1939, § 43.0107.
26-2-6. Time for disaffirmance of contract--Persons authorized to disaffirm--Restoration of consideration.
In all cases other than those specified in §§ 26-2-4 and 26-2-5, the contract of a minor, if made while he is under the age of sixteen, may be disaffirmed by the minor himself, either before his majority or within one year's time afterwards; or in case of his death within that period, by his heirs or personal representatives; and, if the contract be made by the minor after he has reached the age of sixteen, it may be disaffirmed in like manner upon restoring the consideration to the party from whom it was received or paying its equivalent with interest.
Source: SDC 1939, § 43.0105; SL 1972, ch 154, § 7.
26-2-7. Blood donations by minors.
Any person of the age of sixteen years may donate blood if the potential donor obtains the written consent of a parent or guardian. Any person of the age of seventeen years or over may donate blood without obtaining the consent of a parent or guardian. However, no person may take blood for donation from any person of the age of seventeen if the parent or guardian of such potential donor specifically requests of the person taking the blood that such donation be prohibited.
Source: SL 1970, ch 148; SL 1977, ch 206; SL 2009, ch 134, § 1.
26-4-1
Superseded.
26-4-1.1, 26-4-2.
Superseded.
26-4-3, 26-4-4.
Superseded.
26-4-5, 26-4-6. Repealed.
26-4-7
Development of standards for child care agencies.
26-4-8
Repealed.
26-4-9
Repealed.
26-4-9.1
Adoption services program established--Rules adopted.
26-4-10 to 26-4-12. Repealed.
26-4-13
Foster care payments exempt from legal process.
26-4-14
Repealed.
26-4-15
Adoptive home study report for out-of-state children--Criminal record check and
central registry screening to be included.
26-4-5, 26-4-6. Repealed by SL 2012, ch 151, §§ 1, 2.
26-4-7. Development of standards for child care agencies.
The Department of Social Services shall develop standards of care for children in public agencies and private organizations caring for dependent, neglected, delinquent, or mentally handicapped children. The secretary of social services may adopt reasonable and necessary rules setting standards for child welfare agencies for care of children relating to the following areas:
(1) Service or treatment plan requirements for children in care;
(2) Administration and record keeping requirements;
(3) Staff requirements;
(4) Facility safety and sanitation requirements;
(5) Monitoring, evaluation, and audit requirements;
(6) Standards and requirements for the safety and health of children in care; and
(7) Standards and requirements required to obtain federal financial participation for the care of children outside their home in public agencies or private organizations.
Source: SDC 1939, § 55.3702 (1); SL 1981, ch 199, § 9.
26-4-8. Repealed by SL 2012, ch 151, § 3.
26-4-9.1. Adoption services program established--Rules adopted.
The Department of Social Services shall establish a program of adoption services. The secretary of social services may adopt reasonable and necessary rules for the operation of the program of adoption services including:
(1) Program administration;
(2) Adoptive applications and placements;
(3) Investigations and studies;
(4) Qualifications for adoptive families;
(5) Postadoptive services;
(6) Protection of records and confidential information required by statutory law to be held confidential; and
(7) Establishing reasonable fees consistent with the costs of such services.
Source: SL 1970, ch 147, § 2; SL 1981, ch 199, § 10.
26-4-10 to 26-4-12. Repealed by SL 2012, ch 151, §§ 4 to 6.
26-4-13. Foster care payments exempt from legal process.
Payments made for the foster care of children under programs of the Department of Social Services shall not be subject to garnishment or other legal process by any creditor of the payee, except for necessaries furnished for the subsistence and maintenance of the child or children for whom such payments are made.
Source: SL 1965, ch 265.
26-4-15. Adoptive home study report for out-of-state children--Criminal record check and central registry screening to be included.
For the purpose of placing identified children from a state other than South Dakota through a licensed child placement agency from another state for adoption with South Dakota families, an adoptive home study report shall be filed before placement with the Department of Social Services. The adoption home study and report may be provided by a licensed child placement agency as defined in § 26-6-14, the Department of Social Services, or a certified social worker eligible to engage in private independent practice as defined in § 36-26-17. A home study conducted by a certified social worker in private independent practice shall include a criminal record check completed by the Division of Criminal Investigation and a central registry screening completed by the Department of Social Services. Any person who violates the provisions of this section is guilty of a Class 1 misdemeanor.
Source: SL 1982, ch 197; SL 1990, ch 185, § 2; SL 1992, ch 180, § 2; SL 2002, ch 116, § 3.
26-5A-1 to 26-5A-26. Repealed.
26-5B-101. Short title.
This chapter may be cited as the Uniform Child-Custody Jurisdiction and Enforcement Act.
Source: SL 2005, ch 137, § 1.
26-5B-102. Definitions.
In this chapter:
(1) "Abandoned" means left without provision for reasonable and necessary care or supervision.
(2) "Child" means an individual who has not attained eighteen years of age.
(3) "Child-custody determination" means a judgment, decree, or other order of a court providing for the legal custody, physical custody, or visitation with respect to a child. The term includes a permanent, temporary, initial, and modification order. The term does not include an order relating to child support or other monetary obligation of an individual.
(4) "Child-custody proceeding" means a proceeding in which legal custody, physical custody, or visitation with respect to a child is an issue. The term includes a proceeding for divorce, separation, neglect, abuse, dependency, guardianship, paternity, termination of parental rights, and protection from domestic violence, in which the issue may appear. The term does not include a proceeding involving juvenile delinquency, contractual emancipation, or enforcement under Article 3.
(5) "Commencement" means the filing of the first pleading in a proceeding.
(6) "Court" means an entity authorized under the law of a state to establish, enforce, or modify a child-custody determination.
(7) "Home state" means the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child-custody proceeding. In the case of a child less than six months of age, the term means the state in which the child lived from birth with any of the persons mentioned. A period of temporary absence of any of the mentioned persons is part of the period.
(8) "Initial determination" means the first child-custody determination concerning a particular child.
(9) "Issuing court" means the court that makes a child-custody determination for which enforcement is sought under this chapter.
(10) "Issuing state" means the state in which a child-custody determination is made.
(11) "Modification" means a child-custody determination that changes, replaces, supersedes, or is otherwise made after a previous determination concerning the same child, whether or not it is made by the court that made the previous determination.
(12) "Person" means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, government; governmental subdivision, agency, or instrumentality; public corporation; or any other legal or commercial entity.
(13) "Person acting as a parent" means a person, other than a parent, who:
(A) Has physical custody of the child or has had physical custody for a period of six consecutive months, including any temporary absence, within one year immediately before the commencement of a child-custody proceeding; and
(B) Has been awarded legal custody by a court or claims a right to legal custody under the law of this state.
(14) "Physical custody" means the physical care and supervision of a child.
(15) "State" means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States.
(16) "Tribe" means an Indian tribe or band, or Alaskan Native village, which is recognized by federal law or formally acknowledged by a state.
(17) "Warrant" means an order issued by a court authorizing law enforcement officers to take physical custody of a child.
Source: SL 2005, ch 137, § 2.
26-5B-103. Proceedings governed by other law.
This chapter does not govern an adoption proceeding or a proceeding pertaining to the authorization of emergency medical care for a child.
Source: SL 2005, ch 137, § 3.
26-5B-104. Application to Indian tribes.
(a) A child-custody proceeding that pertains to an Indian child as defined in the Indian Child Welfare Act, 25 U.S.C. § 1901 et seq., is not subject to this chapter to the extent that it is governed by the Indian Child Welfare Act.
(b) A court of this state shall treat a tribe as if it were a state of the United States for the purpose of applying Articles 1 and 2.
(c) A child-custody determination made by a tribe under factual circumstances in substantial conformity with the jurisdictional standards of this chapter must be recognized and enforced under Article 3.
Source: SL 2005, ch 137, § 4.
26-5B-105. International application of chapter.
(a) A court of this state shall treat a foreign country as if it were a state of the United States for the purpose of applying Articles 1 and 2.
(b) Except as otherwise provided in subsection (c), a child-custody determination made in a foreign country under factual circumstances in substantial conformity with the jurisdictional standards of this chapter must be recognized and enforced under Article 3.
(c) A court of this state need not apply this chapter if the child custody law of a foreign country violates fundamental principles of human rights.
Source: SL 2005, ch 137, § 5.
26-5B-106. Effect of child-custody determination.
A child-custody determination made by a court of this state that had jurisdiction under this chapter binds all persons who have been served in accordance with the laws of this state or notified in accordance with § 26-5B-108 or who have submitted to the jurisdiction of the court, and who have been given an opportunity to be heard. As to those persons, the determination is conclusive as to all decided issues of law and fact except to the extent the determination is modified.
Source: SL 2005, ch 137, § 6.
26-5B-107. Priority.
If a question of existence or exercise of jurisdiction under this chapter is raised in a child-custody proceeding, the question, upon request of a party, must be given priority on the calendar and handled expeditiously.
Source: SL 2005, ch 137, § 7.
26-5B-108. Notice to persons outside state.
(a) Notice required for the exercise of jurisdiction when a person is outside this state may be given in a manner prescribed by the law of this state for service of process or by the law of the state in which the service is made. Notice must be given in a manner reasonably calculated to give actual notice but may be by publication if other means are not effective.
(b) Proof of service may be made in the manner prescribed by the law of this state or by the law of the state in which the service is made.
(c) Notice is not required for the exercise of jurisdiction with respect to a person who submits to the jurisdiction of the court.
Source: SL 2005, ch 137, § 8.
26-5B-109. Appearance and limited immunity.
(a) A party to a child-custody proceeding, including a modification proceeding, or a petitioner or respondent in a proceeding to enforce or register a child-custody determination, is not subject to personal jurisdiction in this state for another proceeding or purpose solely by reason of having participated, or of having been physically present for the purpose of participating, in the proceeding.
(b) A person who is subject to personal jurisdiction in this state on a basis other than physical presence is not immune from service of process in this state. A party present in this state who is subject to the jurisdiction of another state is not immune from service of process allowable under the laws of that state.
(c) The immunity granted by subsection (a) does not extend to civil litigation based on acts unrelated to the participation in a proceeding under this chapter committed by an individual while present in this state.
Source: SL 2005, ch 137, § 9.
26-5B-110. Communication between courts.
(a) A court of this state may communicate with a court in another state concerning a proceeding arising under this chapter.
(b) The court may allow the parties to participate in the communication. If the parties are not able to participate in the communication, they must be given the opportunity to present facts and legal arguments before a decision on jurisdiction is made.
(c) Communication between courts on schedules, calendars, court records, and similar matters may occur without informing the parties. A record need not be made of the communication.
(d) Except as otherwise provided in subsection (c), a record must be made of a communication under this section. The parties must be informed promptly of the communication and granted access to the record.
(e) For the purposes of this section, "record" means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.
Source: SL 2005, ch 137, § 10.
26-5B-111. Taking testimony in another state.
(a) In addition to other procedures available to a party, a party to a child-custody proceeding may offer testimony of witnesses who are located in another state, including testimony of the parties and the child, by deposition or other means allowable in this state for testimony taken in another state. The court on its own motion may order that the testimony of a person be taken in another state and may prescribe the manner in which and the terms upon which the testimony is taken.
(b) A court of this state may permit an individual residing in another state to be deposed or to testify by telephone, audiovisual means, or other electronic means before a designated court or at another location in that state. A court of this state shall cooperate with courts of other states in designating an appropriate location for the deposition or testimony.
(c) Documentary evidence transmitted from another state to a court of this state by technological means that do not produce an original writing may not be excluded from evidence on an objection based on the means of transmission.
Source: SL 2005, ch 137, § 11.
26-5B-112. Cooperation between courts--Preservation of records.
(a) A court of this state may request the appropriate court of another state to:
(1) Hold an evidentiary hearing;
(2) Order a person to produce or give evidence pursuant to procedures of that state;
(3) Order that an evaluation be made with respect to the custody of a child involved in a pending proceeding;
(4) Forward to the court of this state a certified copy of the transcript of the record of the hearing, the evidence otherwise presented, and any evaluation prepared in compliance with the request; and
(5) Order a party to a child-custody proceeding or any person having physical custody of the child to appear in the proceeding with or without the child.
(b) Upon request of a court of another state, a court of this state may hold a hearing or enter an order described in subsection (a).
(c) Travel and other necessary and reasonable expenses incurred under subsections (a) and (b) may be assessed against the parties according to the law of this state.
(d) A court of this state shall preserve the pleadings, orders, decrees, records of hearings, evaluations, and other pertinent records with respect to a child-custody proceeding until the child attains eighteen years of age. Upon appropriate request by a court or law enforcement official of another state, the court shall forward a certified copy of those records.
Source: SL 2005, ch 137, § 12.
26-5B-201. Initial child-custody jurisdiction.
(a) Except as otherwise provided in § 26-5B-204, a court of this state has jurisdiction to make an initial child-custody determination only if:
(1) This state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state;
(2) A court of another state does not have jurisdiction under paragraph (1), or a court of the home state of the child has declined to exercise jurisdiction on the ground that this state is the more appropriate forum under § 26-5B-207 or 26-5B-208, and:
(A) The child and the child's parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this state other than mere physical presence; and
(B) Substantial evidence is available in this state concerning the child's care, protection, training, and personal relationships;
(3) All courts having jurisdiction under paragraph (1) or (2) have declined to exercise jurisdiction on the ground that a court of this state is the more appropriate forum to determine the custody of the child under § 26-5B-207 or 26-5B-208; or
(4) No court of any other state would have jurisdiction under the criteria specified in paragraph (1), (2), or (3).
(b) Subsection (a) is the exclusive jurisdictional basis for making a child-custody determination by a court of this state.
(c) Physical presence of, or personal jurisdiction over, a party or a child is not necessary or sufficient to make a child-custody determination.
Source: SL 2005, ch 137, § 13.
26-5B-202. Exclusive, continuing jurisdiction.
(a) Except as otherwise provided in § 26-5B-204, a court of this state which has made a child-custody determination consistent with § 26-5B-201 or 26-5B-203 has exclusive, continuing jurisdiction over the determination until:
(1) A court of this state determines that neither the child, nor the child and one parent, nor the child and a person acting as a parent have a significant connection with this state and that substantial evidence is no longer available in this state concerning the child's care, protection, training, and personal relationships; or
(2) A court of this state or a court of another state determines that the child, the child's parents, and any person acting as a parent do not presently reside in this state.
(b) A court of this state which has made a child-custody determination and does not have exclusive, continuing jurisdiction under this section may modify that determination only if it has jurisdiction to make an initial determination under § 26-5B-201.
Source: SL 2005, ch 137, § 14.
26-5B-203. Jurisdiction to modify determination.
Except as otherwise provided in § 26-5B-204, a court of this state may not modify a child-custody determination made by a court of another state unless a court of this state has jurisdiction to make an initial determination under § 26-5B-201(a)(1) or (2) and:
(1) The court of the other state determines it no longer has exclusive, continuing jurisdiction under § 26-5B-202 or that a court of this state would be a more convenient forum under § 26-5B-207; or
(2) A court of this state or a court of the other state determines that the child, the child's parents, and any person acting as a parent do not presently reside in the other state.
Source: SL 2005, ch 137, § 15.
26-5B-204. Temporary emergency jurisdiction.
(a) A court of this state has temporary emergency jurisdiction if the child is present in this state and the child has been abandoned or it is necessary in an emergency to protect the child because the child, or a sibling or parent of the child, is subjected to or threatened with mistreatment or abuse.
(b) If there is no previous child-custody determination that is entitled to be enforced under this chapter and a child-custody proceeding has not been commenced in a court of a state having jurisdiction under §§ 26-5B-201 to 26-5B-203, inclusive, a child-custody determination made under this section remains in effect until an order is obtained from a court of a state having jurisdiction under §§ 26-5B-201 to 26-5B-203, inclusive. If a child-custody proceeding has not been or is not commenced in a court of a state having jurisdiction under §§ 26-5B-201 to 26-5B-203, inclusive, a child-custody determination made under this section becomes a final determination, if it so provides and this state becomes the home state of the child.
(c) If there is a previous child-custody determination that is entitled to be enforced under this chapter, or a child-custody proceeding has been commenced in a court of a state having jurisdiction under §§ 26-5B-201 to 26-5B-203, inclusive, any order issued by a court of this state under this section must specify in the order a period that the court considers adequate to allow the person seeking an order to obtain an order from the state having jurisdiction under §§ 26-5B-201 to 26-5B-203, inclusive. The order issued in this state remains in effect until an order is obtained from the other state within the period specified or the period expires.
(d) A court of this state which has been asked to make a child-custody determination under this section, upon being informed that a child-custody proceeding has been commenced in, or a child-custody determination has been made by, a court of a state having jurisdiction under §§ 26-5B-201 to 26-5B-203, inclusive, shall immediately communicate with the other court. A court of this state which is exercising jurisdiction pursuant to §§ 26-5B-201 to 26-5B-203, inclusive, upon being informed that a child-custody proceeding has been commenced in, or a child-custody determination has been made by, a court of another state under a statute similar to this section shall immediately communicate with the court of that state to resolve the emergency, protect the safety of the parties and the child, and determine a period for the duration of the temporary order.
Source: SL 2005, ch 137, § 16.
26-5B-205. Notice--Opportunity to be heard--Joinder.
(a) Before a child-custody determination is made under this chapter, notice and an opportunity to be heard in accordance with the standards of § 26-5B-108 must be given to all persons entitled to notice under the law of this state as in child-custody proceedings between residents of this state, any parent whose parental rights have not been previously terminated, and any person having physical custody of the child.
(b) This chapter does not govern the enforceability of a child-custody determination made without notice or an opportunity to be heard.
(c) The obligation to join a party and the right to intervene as a party in a child-custody proceeding under this chapter are governed by the law of this state as in child-custody proceedings between residents of this state.
Source: SL 2005, ch 137, § 17.
26-5B-206. Simultaneous proceedings.
(a) Except as otherwise provided in § 26-5B-204, a court of this state may not exercise its jurisdiction under this article if, at the time of the commencement of the proceeding, a proceeding concerning the custody of the child has been commenced in a court of another state having jurisdiction substantially in conformity with this chapter, unless the proceeding has been terminated or is stayed by the court of the other state because a court of this state is a more convenient forum under § 26-5B-207.
(b) Except as otherwise provided in § 26-5B-204, a court of this state, before hearing a child-custody proceeding, shall examine the court documents and other information supplied by the parties pursuant to § 26-5B-209. If the court determines that a child- custody proceeding has been commenced in a court in another state having jurisdiction substantially in accordance with this chapter, the court of this state shall stay its proceeding and communicate with the court of the other state. If the court of the state having jurisdiction substantially in accordance with this chapter does not determine that the court of this state is a more appropriate forum, the court of this state shall dismiss the proceeding.
(c) In a proceeding to modify a child-custody determination, a court of this state shall determine whether a proceeding to enforce the determination has been commenced in another state. If a proceeding to enforce a child-custody determination has been commenced in another state, the court may:
(1) Stay the proceeding for modification pending the entry of an order of a court of the other state enforcing, staying, denying, or dismissing the proceeding for enforcement;
(2) Enjoin the parties from continuing with the proceeding for enforcement; or
(3) Proceed with the modification under conditions it considers appropriate.
Source: SL 2005, ch 137, § 18.
26-5B-207. Inconvenient forum.
(a) A court of this state which has jurisdiction under this chapter to make a child-custody determination may decline to exercise its jurisdiction at any time if it determines that it is an inconvenient forum under the circumstances and that a court of another state is a more appropriate forum. The issue of inconvenient forum may be raised upon motion of a party, the court's own motion, or request of another court.
(b) Before determining whether it is an inconvenient forum, a court of this state shall consider whether it is appropriate for a court of another state to exercise jurisdiction. For this purpose, the court shall allow the parties to submit information and shall consider all relevant factors, including:
(1) Whether domestic violence has occurred and is likely to continue in the future and which state could best protect the parties and the child;
(2) The length of time the child has resided outside this state;
(3) The distance between the court in this state and the court in the state that would assume jurisdiction;
(4) The relative financial circumstances of the parties;
(5) Any agreement of the parties as to which state should assume jurisdiction;
(6) The nature and location of the evidence required to resolve the pending litigation, including testimony of the child;
(7) The ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence; and
(8) The familiarity of the court of each state with the facts and issues in the pending litigation.
(c) If a court of this state determines that it is an inconvenient forum and that a court of another state is a more appropriate forum, it shall stay the proceedings upon condition that a child-custody proceeding be promptly commenced in another designated state and may impose any other condition the court considers just and proper.
(d) A court of this state may decline to exercise its jurisdiction under this chapter if a child-custody determination is incidental to an action for divorce or another proceeding while still retaining jurisdiction over the divorce or other proceeding.
Source: SL 2005, ch 137, § 19.
26-5B-208. Jurisdiction declined by reason of conduct.
(a) Except as otherwise provided in § 26-5B-204, if a court of this state has jurisdiction under this chapter because a person seeking to invoke its jurisdiction has engaged in unjustifiable conduct, the court shall decline to exercise its jurisdiction unless:
(1) The parents and all persons acting as parents have acquiesced in the exercise of jurisdiction;
(2) A court of the state otherwise having jurisdiction under §§ 26-5B-201 to 26-5B-203, inclusive, determines that this state is a more appropriate forum under § 26-5B-207; or
(3) No court of any other state would have jurisdiction under the criteria specified in §§ 26-5B-201 to 26-5B-203, inclusive.
(b) If a court of this state declines to exercise its jurisdiction pursuant to subsection (a), it may fashion an appropriate remedy to ensure the safety of the child and prevent a repetition of the unjustifiable conduct, including staying the proceeding until a child-custody proceeding is commenced in a court having jurisdiction under §§ 26-5B-201 to 26-5B-203, inclusive.
(c) If a court dismisses a petition or stays a proceeding because it declines to exercise its jurisdiction pursuant to subsection (a), it shall assess against the party seeking to invoke its jurisdiction necessary and reasonable expenses including costs, communication expenses, attorney's fees, investigative fees, expenses for witnesses, travel expenses, and child care during the course of the proceedings, unless the party from whom fees are sought establishes that the assessment would be clearly inappropriate. The court may not assess fees, costs, or expenses against this state unless authorized by law other than this chapter.
Source: SL 2005, ch 137, § 20.
26-5B-209. Information to be submitted to court.
(a) In a child-custody proceeding, each party, in its first pleading or in an attached affidavit, shall give information, if reasonably ascertainable, under oath as to the child's present address or whereabouts, the places where the child has lived during the last five years, and the names and present addresses of the persons with whom the child has lived during that period. The pleading or affidavit must state whether the party:
(1) Has participated, as a party or witness or in any other capacity, in any other proceeding concerning the custody of or visitation with the child and, if so, identify the court, the case number, and the date of the child-custody determination, if any;
(2) Knows of any proceeding that could affect the current proceeding, including proceedings for enforcement and proceedings relating to domestic violence, protective orders, termination of parental rights, and adoptions and, if so, identify the court, the case number, and the nature of the proceeding; and
(3) Knows the names and addresses of any person not a party to the proceeding who has physical custody of the child or claims rights of legal custody or physical custody of, or visitation with, the child and, if so, the names and addresses of those persons.
(b) If the information required by subsection (a) is not furnished, the court, upon motion of a party or its own motion, may stay the proceeding until the information is furnished.
(c) If the declaration as to any of the items described in subsection (a) is in the affirmative, the declarant shall give additional information under oath as required by the court. The court may examine the parties under oath as to details of the information furnished and other matters pertinent to the court's jurisdiction and the disposition of the case.
(d) Each party has a continuing duty to inform the court of any proceeding in this or any other state that could affect the current proceeding.
(e) If a party alleges in an affidavit or a pleading under oath that the health, safety, or liberty of a party or child would be jeopardized by disclosure of identifying information, the information must be sealed and may not be disclosed to the other party or the public unless the court orders the disclosure to be made after a hearing in which the court takes into consideration the health, safety, or liberty of the party or child and determines that the disclosure is in the interest of justice.
Source: SL 2005, ch 137, § 21.
26-5B-210. Appearance of parties and child.
(a) In a child-custody proceeding in this state, the court may order a party to the proceeding who is in this state to appear before the court in person with or without the child. The court may order any person who is in this state and who has physical custody or control of the child to appear in person with the child.
(b) If a party to a child-custody proceeding whose presence is desired by the court is outside this state, the court may order that a notice given pursuant to § 26-5B-108 include a statement directing the party to appear in person with or without the child and informing the party that failure to appear may result in a decision adverse to the party.
(c) The court may enter any orders necessary to ensure the safety of the child and of any person ordered to appear under this section.
(d) If a party to a child-custody proceeding who is outside this state is directed to appear under subsection (b) or desires to appear personally before the court with or without the child, the court may require another party to pay reasonable and necessary travel and other expenses of the party so appearing and of the child.
Source: SL 2005, ch 137, § 22.
26-5B-301. Definitions.
In this article:
(1) "Petitioner" means a person who seeks enforcement of an order for return of a child under the Hague Convention on the Civil Aspects of International Child Abduction or enforcement of a child-custody determination.
(2) "Respondent" means a person against whom a proceeding has been commenced for enforcement of an order for return of a child under the Hague Convention on the Civil Aspects of International Child Abduction or enforcement of a child-custody determination.
Source: SL 2005, ch 137, § 23.
26-5B-302. Enforcement under Hague Convention.
Under this article a court of this state may enforce an order for the return of the child made under the Hague Convention on the Civil Aspects of International Child Abduction as if it were a child-custody determination.
Source: SL 2005, ch 137, § 24.
26-5B-303. Duty to enforce.
(a) A court of this state shall recognize and enforce a child-custody determination of a court of another state if the latter court exercised jurisdiction in substantial conformity with this chapter or the determination was made under factual circumstances meeting the jurisdictional standards of this chapter and the determination has not been modified in accordance with this chapter.
(b) A court of this state may utilize any remedy available under other law of this state to enforce a child-custody determination made by a court of another state. The remedies provided in this article are cumulative and do not affect the availability of other remedies to enforce a child-custody determination.
Source: SL 2005, ch 137, § 25.
26-5B-304. Temporary visitation.
(a) A court of this state which does not have jurisdiction to modify a child-custody determination, may issue a temporary order enforcing:
(1) A visitation schedule made by a court of another state; or
(2) The visitation provisions of a child-custody determination of another state that does not provide for a specific visitation schedule.
(b) If a court of this state makes an order under subsection (a)(2), it shall specify in the order a period that it considers adequate to allow the petitioner to obtain an order from a court having jurisdiction under the criteria specified in Article 2. The order remains in effect until an order is obtained from the other court or the period expires.
Source: SL 2005, ch 137, § 26.
26-5B-305. Registration of child-custody determination.
(a) A child-custody determination issued by a court of another state may be registered in this state, with or without a simultaneous request for enforcement, by sending to the appropriate court in this state:
(1) A letter or other document requesting registration;
(2) Two copies, including one certified copy, of the determination sought to be registered, and a statement under penalty of perjury that to the best of the knowledge and belief of the person seeking registration the order has not been modified; and
(3) Except as otherwise provided in § 26-5B-209, the name and address of the person seeking registration and any parent or person acting as a parent who has been awarded custody or visitation in the child-custody determination sought to be registered.
(b) On receipt of the documents required by subsection (a), the registering court shall:
(1) Cause the determination to be filed as a foreign judgment, together with one copy of any accompanying documents and information, regardless of their form; and
(2) Serve notice upon the persons named pursuant to subsection (a)(3) and provide them with an opportunity to contest the registration in accordance with this section.
(c) The notice required by subsection (b)(2) must state that:
(1) A registered determination is enforceable as of the date of the registration in the same manner as a determination issued by a court of this state;
(2) A hearing to contest the validity of the registered determination must be requested within twenty days after service of notice; and
(3) Failure to contest the registration will result in confirmation of the child-custody determination and preclude further contest of that determination with respect to any matter that could have been asserted.
(d) A person seeking to contest the validity of a registered order must request a hearing within twenty days after service of the notice. At that hearing, the court shall confirm the registered order unless the person contesting registration establishes that:
(1) The issuing court did not have jurisdiction under Article 2;
(2) The child-custody determination sought to be registered has been vacated, stayed, or modified by a court having jurisdiction to do so under Article 2; or
(3) The person contesting registration was entitled to notice, but notice was not given in accordance with the standards of § 26-5B-108, in the proceedings before the court that issued the order for which registration is sought.
(e) If a timely request for a hearing to contest the validity of the registration is not made, the registration is confirmed as a matter of law and the person requesting registration and all persons served must be notified of the confirmation.
(f) Confirmation of a registered order, whether by operation of law or after notice and hearing, precludes further contest of the order with respect to any matter that could have been asserted at the time of registration.
Source: SL 2005, ch 137, § 27.
26-5B-306. Enforcement of registered determination.
(a) A court of this state may grant any relief normally available under the law of this state to enforce a registered child-custody determination made by a court of another state.
(b) A court of this state shall recognize and enforce, but may not modify, except in accordance with Article 2, a registered child-custody determination of a court of another state.
Source: SL 2005, ch 137, § 28.
26-5B-307. Simultaneous proceedings.
If a proceeding for enforcement under this article is commenced in a court of this state and the court determines that a proceeding to modify the determination is pending in a court of another state having jurisdiction to modify the determination under Article 2, the enforcing court shall immediately communicate with the modifying court. The proceeding for enforcement continues unless the enforcing court, after consultation with the modifying court, stays or dismisses the proceeding.
Source: SL 2005, ch 137, § 29.
26-5B-308. Expedited enforcement of child-custody determination.
(a) A petition under this article must be verified. Certified copies of all orders sought to be enforced and of any order confirming registration must be attached to the petition. A copy of a certified copy of an order may be attached instead of the original.
(b) A petition for enforcement of a child-custody determination must state:
(1) Whether the court that issued the determination identified the jurisdictional basis it relied upon in exercising jurisdiction and, if so, what the basis was;
(2) Whether the determination for which enforcement is sought has been vacated, stayed, or modified by a court whose decision must be enforced under this chapter and, if so, identify the court, the case number, and the nature of the proceeding;
(3) Whether any proceeding has been commenced that could affect the current proceeding, including proceedings relating to domestic violence, protective orders, termination of parental rights, and adoptions and, if so, identify the court, the case number, and the nature of the proceeding;
(4) The present physical address of the child and the respondent, if known;
(5) Whether relief in addition to the immediate physical custody of the child and attorney's fees is sought, including a request for assistance from law enforcement officials and, if so, the relief sought; and
(6) If the child-custody determination has been registered and confirmed under § 26-5B-305, the date and place of registration.
(c) Upon the filing of a petition, the court shall issue an order directing the respondent to appear in person with or without the child at a hearing and may enter any order necessary to ensure the safety of the parties and the child. The hearing must be held on the next judicial day after service of the order unless that date is impossible. In that event, the court shall hold the hearing on the first judicial day possible. The court may extend the date of hearing at the request of the petitioner.
(d) An order issued under subsection (c) must state the time and place of the hearing and advise the respondent that at the hearing the court will order that the petitioner may take immediate physical custody of the child and the payment of fees, costs, and expenses under § 26-5B-312, and may schedule a hearing to determine whether further relief is appropriate, unless the respondent appears and establishes that:
(1) The child-custody determination has not been registered and confirmed under § 26-5B-305 and that:
(A) The issuing court did not have jurisdiction under Article 2;
(B) The child-custody determination for which enforcement is sought has been vacated, stayed, or modified by a court having jurisdiction to do so under Article 2; or
(C) The respondent was entitled to notice, but notice was not given in accordance with the standards of § 26-5B-108, in the proceedings before the court that issued the order for which enforcement is sought; or
(2) The child-custody determination for which enforcement is sought was registered and confirmed under § 26-5B-304, but has been vacated, stayed, or modified by a court of a state having jurisdiction to do so under Article 2.
Source: SL 2005, ch 137, § 30.
26-5B-309. Service of petition and order.
Except as otherwise provided in § 26-5B-311, the petition and order must be served, by any method authorized by the state statute, upon respondent and any person who has physical custody of the child.
Source: SL 2005, ch 137, § 31.
26-5B-310. Hearing and order.
(a) Unless the court issues a temporary emergency order pursuant to § 26-5B-204, upon a finding that a petitioner is entitled to immediate physical custody of the child, the court shall order that the petitioner may take immediate physical custody of the child unless the respondent establishes that:
(1) The child-custody determination has not been registered and confirmed under § 26-5B-305 and that:
(A) The issuing court did not have jurisdiction under Article 2;
(B) The child-custody determination for which enforcement is sought has been vacated, stayed, or modified by a court of a state having jurisdiction to do so under Article 2; or
(C) The respondent was entitled to notice, but notice was not given in accordance with the standards of § 26-5B-108, in the proceedings before the court that issued the order for which enforcement is sought; or
(2) The child-custody determination for which enforcement is sought was registered and confirmed under § 26-5B-305 but has been vacated, stayed, or modified by a court of a state having jurisdiction to do so under Article 2.
(b) The court shall award the fees, costs, and expenses authorized under § 26-5B-312 and may grant additional relief, including a request for the assistance of law enforcement officers, and set a further hearing to determine whether additional relief is appropriate.
(c) If a party called to testify refuses to answer on the ground that the testimony may be self-incriminating, the court may draw an adverse inference from the refusal.
(d) A privilege against disclosure of communications between spouses and a defense of immunity based on the relationship of husband and wife or parent and child may not be invoked in a proceeding under this article.
Source: SL 2005, ch 137, § 32.
26-5B-311. Warrant to take physical custody of child.
(a) Upon the filing of a petition seeking enforcement of a child-custody determination, the petitioner may file a verified application for the issuance of a warrant to take physical custody of the child if the child is immediately likely to suffer serious physical harm or be removed from this state.
(b) If the court, upon the testimony of the petitioner or other witness, finds that the child is imminently likely to suffer serious physical harm or be removed from this state, it may issue a warrant to take physical custody of the child. The petition must be heard on the next judicial day after the warrant is executed unless that date is impossible. In that event, the court shall hold the hearing on the first judicial day possible. The application for the warrant must include the statements required by § 26-5B-308(b).
(c) A warrant to take physical custody of a child must:
(1) Recite the facts upon which a conclusion of imminent serious physical harm or removal from the jurisdiction is based;
(2) Direct law enforcement officers to take physical custody of the child immediately; and
(3) Provide for the placement of the child pending final relief.
(d) The respondent must be served with the petition, warrant, and order immediately after the child is taken into physical custody.
(e) A warrant to take physical custody of a child is enforceable throughout this state. If the court finds on the basis of the testimony of the petitioner or other witness that a less intrusive remedy is not effective, it may authorize law enforcement officers to enter private property to take physical custody of the child. If required by exigent circumstances of the case, the court may authorize law enforcement officers to make a forcible entry at any hour.
(f) The court may impose conditions upon placement of a child to ensure the appearance of the child and the child's custodian.
Source: SL 2005, ch 137, § 33.
26-5B-312. Costs, fees, and expenses.
(a) The court shall award the prevailing party, including a state, necessary and reasonable expenses incurred by or on behalf of the party, including costs, communication expenses, attorney's fees, investigative fees, expenses for witnesses, travel expenses, and child care during the course of the proceedings, unless the party from whom fees or expenses are sought establishes that the award would be clearly inappropriate.
(b) The court may not assess fees, costs, or expenses against a state unless authorized by law other than this chapter.
Source: SL 2005, ch 137, § 34.
26-5B-313. Recognition and enforcement.
A court of this state shall accord full faith and credit to an order issued by another state and consistent with this chapter which enforces a child-custody determination by a court of another state unless the order has been vacated, stayed, or modified by a court having jurisdiction to do so under Article 2.
Source: SL 2005, ch 137, § 35.
26-5B-314. Appeals.
An appeal may be taken from a final order in a proceeding under this article in accordance with expedited appellate procedures in other civil cases. Unless the court enters a temporary emergency order under § 26-5B-204, the enforcing court may not stay an order enforcing a child-custody determination pending appeal.
Source: SL 2005, ch 137, § 36.
26-5B-315. Role of prosecutor or public official.
(a) In a case arising under this chapter or involving the Hague Convention on the Civil Aspects of International Child Abduction, the prosecutor or other appropriate public official may take any lawful action, including resort to a proceeding under this article or any other available civil proceeding to locate a child, obtain the return of a child, or enforce a child-custody determination if there is:
(1) An existing child-custody determination;
(2) A request to do so from a court in a pending child-custody proceeding;
(3) A reasonable belief that a criminal statute has been violated; or
(4) A reasonable belief that the child has been wrongfully removed or retained in violation of the Hague Convention on the Civil Aspects of International Child Abduction.
(b) A prosecutor or appropriate public official acting under this section acts on behalf of the court and may not represent any party.
Source: SL 2005, ch 137, § 37.
26-5B-316. Role of law enforcement.
At the request of a prosecutor or other appropriate public official acting under § 26-5B-315, a law enforcement officer may take any lawful action reasonably necessary to locate a child or a party and assist a prosecutor or appropriate public official with responsibilities under § 26-5B-315.
Source: SL 2005, ch 137, § 38.
26-5B-317. Costs and expenses.
If the respondent is not the prevailing party, the court may assess against the respondent all direct expenses and costs incurred by the prosecutor or other appropriate public official and law enforcement officers under § 26-5B-315 or 26-5B-316.
Source: SL 2005, ch 137, § 39.
26-5B-401. Application and construction.
In applying and construing this Uniform Act, consideration must be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.
Source: SL 2005, ch 137, § 40.
26-5B-402. Severability clause.
If any provision of this chapter or its application to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of this chapter which can be given effect without the invalid provision or application, and to this end the provisions of this chapter are severable.
Source: SL 2005, ch 137, § 41.
26-5B-405. Transitional provision.
A motion or other request for relief made in a child-custody proceeding or to enforce a child-custody determination which was commenced before July 1, 2005, is governed by the law in effect at the time the motion or other request was made.
Source: SL 2005, ch 137, § 44.
CHAPTER 26-6
CHILDREN'S HOMES AND WELFARE AGENCIES
26-6-1 Agencies and institutions defined as child welfare agencies--Department of Social Services.
26-6-1.1 Chapter not applicable to day care services provided by school board for children of enrolled students.
26-6-1.2 Definitions.
26-6-2 26-6-2 to 26-6-6. Repealed by SL 1985, ch 211, §§ 2 to 6
26-6-6.1 Continuing foster care to age twenty-one.
26-6-7 26-6-7. Repealed by SL 1971, ch 165, § 13
26-6-8 License required to place child for adoption--Relatives and guardian excepted.
26-6-9 License or registration required for child care or placement by public or private agency--Waiver violation as misdemeanor.
26-6-10 26-6-10. Repealed by SL 1986, ch 222
26-6-11 Application for license--Investigation--Issuance--Conditions--Records--Public inspection.
26-6-12 Provisional license authorized.
26-6-13 Duration of licenses--Suspension or revocation--Assignment prohibited--Display or availability for inspection.
26-6-14 Categories of child welfare agency licenses.
26-6-14.1 Family day care defined--Number of children allowed.
26-6-14.2 Registration of family day care homes--Rules--Exemption--Investigation--Duration of registration--Assignment prohibited.
26-6-14.3 Issuance of child welfare license--Criminal record of applicant to be secured--Waiver by applicant--When application denied.
26-6-14.4 Persons to whom criminal record requirement applies.
26-6-14.5 Waiver, fingerprinting, and declaration as condition of employment--Time--Immediate termination of employee.
26-6-14.6 Meaning of conviction--Evidence of conviction.
26-6-14.7 Transfer of criminal record clearance when changing employment.
26-6-14.8 Unregistered family day care defined--Number of children allowed.
26-6-14.9 Submission of employees' names to department--Central registry background checks--Notification to provider--Issuance of certificate.
26-6-14.10 Prohibition of licensure, registration, or operation by person convicted of child abuse or other felony, or whose name appears on registry--Failure to report as misdemeanor.
26-6-14.11 Prohibition of child care by person convicted of child abuse, sex offense, or other felony, or whose name appears on registry--Violation as misdemeanor.
26-6-14.12 Before and after school day care exempt from zoning, uniform building, and safety provisions.
26-6-14.13 Information from another state's central registry or national crime database to be used only for background check.
26-6-15 Specification in licenses and registration certificates of work authorized.
26-6-15.1 Additional number of children in day care--Staff-to-child ratios.
26-6-15.2 Additional number of children in day care center operating preschool program.
26-6-16 Rules for child care by licensed or registered agencies promulgated by department--Matters included in rules.
26-6-17 26-6-17. Repealed by SL 1985, ch 211, § 11
26-6-18 Repealed by SL 2012, ch 151, § 7.
26-6-18.1 Establishment and support of day care centers by counties and municipalities.
26-6-18.2 26-6-18.2. Repealed by SL 1985, ch 77, § 42
26-6-18.3 Appropriation for day care centers.
26-6-18.4 Approved programs required for payments to nonprofit organizations--Records and periodic audit.
26-6-18.5 Exemption of program from zoning, building and fire and life safety codes.
26-6-19 Department of Health visitations and inspections.
26-6-20 Records on children in care of agencies--Information confidential.
26-6-20.1 Definition of terms.
26-6-20.2 Separation of residents' moneys required of homes and centers.
26-6-20.3 Demand trust account deposit of moneys not kept in center--Deposit with state treasurer by public agency.
26-6-20.4 Deposit of money for resident when over specified amount.
26-6-20.5 Surety bond required of facility handling more than specified monthly amount--Bond amount.
26-6-20.6 Safeguards and records required of facilities.
26-6-20.7 Public audit of records.
26-6-20.8 Revocation of license--Cause.
26-6-20.9 Surrender of moneys and funds upon discharge of resident--Receipt--Deposited funds.
26-6-20.10 Escheat of unclaimed property under specified value after death of resident--Notice to relatives--Time--Disposition of property or money.
26-6-21 Placement of children for adoption--Consent by agency to adoption.
26-6-21.1 26-6-21.1. Repealed by SL 2002, ch 130, § 1
26-6-22 Notice to remove child from child welfare agency.
26-6-23 Grounds for revocation or refusal to issue or renew child welfare agency license or registration.
26-6-23.1 Revocation or refusal to issue or renew license or registration for child abuse or violence.
26-6-23.2 Central registry background checks on employees.
26-6-24 Notice of intended revocation or refusal of renewal of license or registration--Hearing on protest--Temporary suspension.
26-6-25 Investigation by department of unlicensed and unregistered operations--Further action by department.
26-6-26 26-6-26. Repealed by SL 1985, ch 211, § 14
26-6-27 Educational and incidental activities exempt from chapter--State institutions.
26-6-28 Reduction of number of children in foster care.
26-6-29 Shelters for battered spouses exempt.
26-6-30 26-6-30 to 26-6-34. Repealed by SL 2004, ch 167, §§ 6 to 10
26-6-35 Foster care for person under continuing juvenile jurisdiction who is over the age of majority.
26-6-36 Definitions relating to religious child-placement agencies.
26-6-37 Adverse action defined.
26-6-38 Child-placement agency not required to provide service that conflicts with sincere written religious policy.
26-6-39 State may not take adverse action against child-placement agency acting on basis of sincere written religious policy.
26-6-40 Licensure and state benefit programs available to religious child-placement agency.
26-6-41 Religious child-placement agency to be independent from state.
26-6-42 Child-placement agency may not decline service on basis of race, ethnicity, or national origin.
26-6-43 Claim or defense based on §§ 26-6-36 to 26-6-50.
26-6-44 Relief available for successful claim or defense.
26-6-45 Sovereign immunity not waived.
26-6-46 Broad protection of free exercise of religious beliefs and moral convictions.
26-6-47 Other law in conflict preempted.
26-6-48 Time for asserting claim.
26-6-49 Construction with federal law.
26-6-50 Other child-placement agencies not limited by actions of religious child-placement agency--Best interest of child.
26-6-51 Monitor--Designation--Primary duty.
26-6-52 Monitor--Powers and duties.
26-6-53 Findings of abuse or neglect--Report.
26-6-54 Persons requesting assistance--Identity--Confidentiality.
26-6-55 Hinderance of monitor--Violation as misdemeanor.
26-6-56 Retaliatory acts--Prohibition--Violation as misdemeanor.
26-6-57 Persons making report--Identity--Confidentiality.
26-6-1. Agencies and institutions defined as child welfare agencies--Department of Social Services.
Any agency or institution maintained by a municipality or county, or any agency or institution maintained by a person, firm, limited liability company, corporation, association, or organization to receive children for care and maintenance or for placement in a family home, or that provides care for mothers and their children, is considered to be a child welfare agency. The Department of Social Services is a child welfare agency.
Source: SL 1939, ch 168, § 1; SDC Supp 1960, § 55.3706; SL 1965, ch 248, § 1; SL 1985, ch 211, § 1; SL 1994, ch 351, § 46.
26-6-1.1. Chapter not applicable to day care services provided by school board for children of enrolled students.
Nothing in this chapter applies to day care services provided by any school board for the children of enrolled students.
Source: SL 1989, ch 138, § 2.
26-6-1.2 . Definitions.
Terms used in this chapter mean:
(1) "Shelter care facility," a group care center that provides short-term, full-time care for children often placed under emergency conditions;
(2) "Records," reports prepared or received by any staff of a licensed shelter care facility, group care center, residential treatment center, intensive residential treatment center, or independent living preparation program.
Source: SL 2020, ch 107, § 1.
26-6-6.1. Continuing foster care to age twenty-one.
Notwithstanding the provisions of §§ 26-1-1 and 26-7A-101, any child welfare agency, including the Department of Social Services, may continue to provide foster care for a person over the age of majority but less than twenty-one years of age if the person was in foster care immediately prior to reaching the age of majority and has not yet completed the twelfth grade of school or is in a continuing course of remedial treatment and if the person consents in writing to continued foster care.
Source: SL 1973, ch 167; SL 1991, ch 217, § 171.
26-6-8. License required to place child for adoption--Relatives and guardian excepted.
No person other than the parents, guardian, or relatives within the second degree, and no firm, limited liability company, corporation, association, or organization other than a licensed child welfare agency, or the Department of Social Services, may place any child in the control and care of any person or place such child for adoption.
Source: SL 1939, ch 168, § 7; SDC Supp 1960, § 55.3712; SL 1994, ch 351, § 47.
26-6-9. License or registration required for child care or placement by public or private agency--Waiver violation as misdemeanor.
No person, firm, limited liability company, corporation, association, organization, municipality, or county, other than the Department of Social Services, may establish or maintain a child welfare agency or receive children for care or for placement in a family home unless licensed pursuant to § 26-6-14 or registered pursuant to § 26-6-14.2 to do so by the Department of Social Services. The department, upon request, may waive licensure for activities set out in § 26-6-14 for any facility that would otherwise be required to be licensed by the department as a child welfare agency if the requesting agency is similarly regulated by another state agency. Before the department may consider or grant a waiver of licensure for activities set out in § 26-6-14, the agency requesting waiver of licensure shall provide the department with appropriate documentation of current and valid approval by the appropriate state regulatory agency. Submission of false or fraudulent licensure information or documentation to the department or any violation of this section is a Class 2 misdemeanor.
Source: SL 1939, ch 168, §§ 3, 13; SDC Supp 1960, §§ 55.3708, 55.9936; SL 1979, ch 170, § 1; SL 1994, ch 351, § 48; SL 1995, ch 147, § 1.
26-6-11. Application for license--Investigation--Issuance--Conditions--Records--Public inspection.
Applications for the license required by this chapter shall be made in the manner prescribed and on forms provided by the Department of Social Services. Before issuing the license the department shall investigate the activities and standards of care of the agency. A license shall be issued if the department is satisfied as to the need for the agency, its financial stability, the good character and intent of the applicant, and that the equipment of the agency and its services are conducive to the welfare of the children. Such license shall be conditioned on the granting of access to the premises described on the license to the Department of Social Services for visitation and inspection, at any reasonable time. In cases of suspected child abuse or neglect, unrestricted access shall be allowed at any time. The final reports of inspections required by this chapter shall be kept on file by the Department of Social Services and shall be open to public inspection.
Source: SL 1939, ch 168, § 3; SDC Supp 1960, § 55.3708; SL 1985, ch 211, § 7.
26-6-12. Provisional license authorized.
A provisional license may be issued to any agency whose services are needed but which is temporarily unable to conform to all the provisions of the established standards of care. No provisional license may be issued for more than three consecutive years.
Source: SL 1939, ch 168, § 3; SDC Supp 1960, § 55.3708; SL 2000, ch 120, § 2.
26-6-13. Duration of licenses--Suspension or revocation--Assignment prohibited--Display or availability for inspection.
A license for child welfare agency activities under subdivisions 26-6-14(3), (6), and (7) shall remain in effect until revoked or suspended. Any other license under this chapter is effective for one year from the date of issuance and shall be renewed annually on application of the agency. A license may be suspended or revoked pursuant to this chapter. No license issued under this chapter may be assigned or transferred, and the license applies only to the licensee and the location stated in the application. The license remains the property of the Department of Social Services. The license shall be publicly displayed, except in a family foster home, which shall have its license available for inspection.
Source: SL 1939, ch 168, § 3; SDC Supp 1960, § 55.3708; SL 1985, ch 211, § 8; SL 2000, ch 120, § 1.
26-6-14. Categories of child welfare agency licenses.
A child welfare agency shall be licensed, pursuant to the provisions of this chapter, for activities which fall within one or more of the following categories:
(1) The providing of group care, maintenance, supervision, and protection of children on a regular full-time basis as a substitute for regular parental care, with or without compensation, in a nonfamily group setting, which shall be known as an intensive residential treatment center, a residential treatment center, a group care center, or as a group home as each is defined by standards established pursuant to the provisions of § 26-6-16;
(2) The providing of care, maintenance, supervision, and protection of a child, or children, as a substitute for regular parental care, without transfer of legal custody or placement for adoption, with or without compensation, on a regular full-time basis in a family home, which shall be known as a foster home;
(3) The providing of group care and supervision of children on a regular basis for part of a day as a supplement to regular parental care, with or without compensation, for twenty-one or more children, including children under the age of six living in the home and children from more than one unrelated family received for day care, in any facility, including a family home, which shall be known as a day care center;
(4) The receiving and placement of children in foster homes or for adoption, with or without compensation, as a regular activity of any agency formed for such purpose, or the performance of such services as an adjunct to other regular activities, which shall be known as a child-placement agency;
(5) The providing of group care and supervision of children on a regular basis for part of a day as a supplement to regular parental care, with or without compensation, for thirteen to twenty children, including children under the age of six living in the home and children from more than one unrelated family received for day care, in any facility, including a family home, which shall be known as a group family day care home;
(6) The providing of care and supervision of children on a regular basis before and after regular school hours which does not exceed four hours daily per child, which shall be known as a before and after school day care program;
(7) The providing of supervision and training in self-sufficiency and responsible independent living for youth aged sixteen through twenty years of age who are wards of the state, which shall be known as an independent living preparation program.
Source: SDC Supp 1960, § 55.3706 as added by SL 1965, ch 248, § 1; SL 1972, ch 152; SL 1979, ch 170, § 2; SL 1982, ch 198; SL 1988, ch 207, §§ 3, 4; SL 1988, ch 209, § 1; SL 1989, ch 139, § 2; SL 1993, ch 196; SL 2005, ch 138, § 1; SL 2015, ch 150, § 2.
26-6-14.1. Family day care defined--Number of children allowed.
For the purposes of this chapter, family day care means providing care and supervision of children from more than one unrelated family, in a family home, on a regular basis for part of a day as a supplement to regular parental care, without transfer of legal custody or placement for adoption, paid for directly or indirectly out of public funds. A family day care home may not be registered for care and supervision of more than twelve children at any one time including children under the age of six living in the home.
Source: SL 1979, ch 170, § 9; SL 1981, ch 200; SL 1983, ch 209, § 1.
26-6-14.2. Registration of family day care homes--Rules--Exemption--Investigation--Duration of registration--Assignment prohibited.
Application for registration for operation of a family day care home shall be made on forms provided by the Department of Social Services and in the manner prescribed by the department. The secretary of social services shall promulgate rules regulating family day care homes providing services paid for directly or indirectly out of public funds. The rules shall be promulgated pursuant to chapter 1-26. However, the rules and the registration required by § 26-6-14.1 do not apply to family day care homes providing services not paid for directly or indirectly out of public funds. The department may investigate any family day care home providing services paid for directly or indirectly out of public funds to verify compliance with this chapter and the rules promulgated pursuant to this chapter. All registration certificates shall be in force for two years from the date of issuance unless revoked as authorized by § 26-6-23. The certificate issued under this chapter may not be assigned or transferred and applies only to the certificate and the location stated in the application and remains the property of the Department of Social Services.
Source: SL 1979, ch 170, § 10; SL 1981, ch 199, § 11; SL 1983, ch 209, § 2; SL 1985, ch 211, § 9.
26-6-14.3. Issuance of child welfare license--Criminal record of applicant to be secured--Waiver by applicant--When application denied.
Before issuing a child welfare license pursuant to § 26-6-14, the department shall ensure that the child welfare agency has secured from an appropriate law enforcement agency a criminal record to determine whether the applicant or any other person specified in § 26-6-14.4 has ever been convicted of a crime specified by the rules of the department. This requirement does not apply to applications for annual renewal of an existing child welfare agency license if the applicant was licensed in the preceding year. Any person who makes an application for a license pursuant to § 26-6-14 and any other person specified in § 26-6-14.4 shall sign the waiver set forth in § 23-5-12. If it is found that the applicant or any other person specified in § 26-6-14.4 has been convicted of a crime specified by the rules of the department, the application shall be denied.
Source: SL 1988, ch 208, § 1; SL 1993, ch 197, § 1.
26-6-14.4. Persons to whom criminal record requirement applies.
In addition to the applicant, §§ 26-6-14.3 to 26-6-14.7, inclusive, shall be applicable to the criminal conviction of the following persons:
(1) Adults responsible for administration or direct supervision of staff;
(2) Any adult residing in the facility;
(3) Any adult, including a volunteer, who provides care and supervision to the children; and
(4) Any adult working in a child care institution, including a group home, residential treatment center, intensive residential treatment center, or shelter care facility. A child care institution does not include a day care center, group family day care home, or a before and after school day care program.
Source: SL 1988, ch 208, § 2; SL 2019, ch 124, § 1.
26-6-14.5. Waiver, fingerprinting, and declaration as condition of employment--Time--Immediate termination of employee.
Subsequent to initial licensure, any person specified in § 26-6-14.4 shall, as a condition to employment, residence, or presence in a child welfare agency sign the waiver set forth in § 23-5-12, be fingerprinted and sign a declaration under penalty of perjury regarding any prior criminal conviction and military history. The licensee shall submit these fingerprints to the South Dakota Division of Criminal Investigation and the Federal Bureau of Investigation Identification Division not later than fourteen calendar days following employment, residence, or initial presence in the child welfare agency. If it is determined that the person has been convicted of a crime specified by rules of the department, the licensee shall act immediately to terminate the person's employment and remove the person from the child welfare agency or bar the person from entering the child welfare agency.
Source: SL 1988, ch 208, § 3; SL 1993, ch 197, § 2.
26-6-14.6. Meaning of conviction--Evidence of conviction.
For purposes of §§ 26-6-14.3 to 26-6-14.7, inclusive, or any other provision of this chapter, a conviction means a plea or verdict of guilty or a conviction following a plea of nolo contendere in this state or any other state. Any action which the department is permitted to take following the establishment of a conviction may be taken when the time for appeal has elapsed, or the judgment of conviction has been affirmed on appeal. For purposes of §§ 26-6-14.3 to 26-6-14.7, inclusive, or any other provision of this chapter, the record of a conviction, or a copy thereof certified by the clerk of the court or by a judge of the court in which the conviction occurred, shall be conclusive evidence of the conviction.
Source: SL 1988, ch 208, § 4.
26-6-14.7. Transfer of criminal record clearance when changing employment.
For the purposes of compliance with §§ 26-6-14.3 to 26-6-14.7, inclusive, the department shall permit an individual to transfer a current criminal record clearance, as defined in § 26-6-14.3, from one facility to another when changing employment. The department shall supply the individual with documentation of the clearance within thirty days of a written request for the records.
Source: SL 1988, ch 208, § 5.
26-6-14.8. Unregistered family day care defined--Number of children allowed.
For the purposes of §§ 26-6-14.8 to 26-6-14.11, inclusive, unregistered family day care means the providing care and supervision of children from more than one unrelated family, in a family home, on a regular basis for part of a day as a supplement to regular parental care, without transfer of legal custody or placement for adoption, without payment directly or indirectly of any public funds. An unregistered family day care home may not provide care for more than twelve children at any one time including children under six living in the home.
Source: SL 1988, ch 206, § 1.
26-6-14.9. Submission of employees' names to department--Central registry background checks--Notification to provider--Issuance of certificate.
Any provider of unregistered family day care may submit his name and the names of any employees or residents at the home, to the Department of Social Services, on forms supplied by the department. The department shall conduct central registry and substantiated abuse or neglect report background checks on all names submitted pursuant to §§ 26-6-14.8 to 26-6-14.11, inclusive. If the department determines that any person whose name has been submitted has been convicted of child abuse pursuant to chapter 26-10 or a sex offense pursuant to chapter 22-22, or has a substantiated report of child abuse or neglect on file with the department, the department shall so notify the provider. If the central registry and substantiated abuse or neglect report background check yields no substantiated reports of child abuse or neglect, as defined by the department by rules promulgated pursuant to chapter 1-26, or no convictions of either the provider or the names submitted by the provider of child abuse pursuant to chapter 26-10 or sex offenses pursuant to chapter 22-22, then the department shall issue a certificate, at no cost to the provider, verifying that fact.
Source: SL 1988, ch 206, § 1A; SL 1993, ch 198.
26-6-14.10. Prohibition of licensure, registration, or operation by person convicted of child abuse or other felony, or whose name appears on registry--Failure to report as misdemeanor.
No person who has been convicted of child abuse pursuant to chapter 26-10; a sex offense pursuant to chapter 22-22; or, within the preceding five years, any other felony; and no person whose name appears on the sex offender registry or on the central registry for child abuse and neglect may:
(1) Be licensed to operate a child welfare agency pursuant to § 26-6-14;
(2) Be registered to operate a family day care home pursuant to § 26-6-14. 2; or
(3) Operate an unregistered family day care home as defined in § 26-6-14.8.
Any person who has actual knowledge that some other person is violating this section and who subsequently fails to report such violation to the state's attorney or local law enforcement is guilty of a Class 1 misdemeanor.
Source: SL 1988, ch 206, § 2; SL 2001, ch 136, § 1; SL 2004, ch 178, § 1, eff. Mar. 9, 2004; SL 2010, ch 138, § 2.
26-6-14.11. Prohibition of child care by person convicted of child abuse, sex offense, or other felony, or whose name appears on registry--Violation as misdemeanor.
Any person who has been convicted of child abuse pursuant to chapter 26-10; a sex offense pursuant to chapter 22-22; or, within the preceding five years, any other felony; or whose name appears on the sex offender registry or on the central registry for child abuse and neglect is guilty of a Class 1 misdemeanor if such person resides or works or provides care and supervision of children in any child welfare agency or any registered or unregistered family day care home. Any person who permits another person to reside or work or provide care and supervision of children in any child welfare agency or any registered or unregistered family day care home knowing that the person has been convicted of child abuse pursuant to chapter 26-10; a sex offense pursuant to chapter 22-22; or, within the preceding five years, any other felony; or knowing that the person's name appears on the sex offender registry or on the central registry for child abuse and neglect, is guilty of a Class 1 misdemeanor.
Source: SL 1988, ch 206, § 3; SL 2001, ch 136, § 2; SL 2004, ch 178, § 2, eff. Mar. 9, 2004; SL 2010, ch 138, § 1.
26-6-14.12. Before and after school day care exempt from zoning, uniform building, and safety provisions.
A county or municipality may exempt a before and after school day care program from its zoning, uniform building, and fire and life safety code provisions if the day care program is accessory to a church, nonprofit youth organization, hospital, public or private school, or office building.
Source: SL 1989, ch 139, § 3.
26-6-14.13. Information from another state's central registry or national crime database to be used only for background check.
Information obtained from another state's child abuse and neglect central registry or from the national crime information databases for the purpose of conducting a background check under § 26-6-14.5 or for approval of a foster or adoptive placement may be used for purposes related to conducting the background check only and may not be released except as authorized by law.
Source: SL 2007, ch 162, § 1; SL 2019, ch 124, § 2.
26-6-15. Specification in licenses and registration certificates of work authorized.
Each license or registration certificate shall specify the name, location, and the kind of child welfare work the licensee or registrant may undertake, the number of children that can be received and their ages and sex, and if authorized to place and supervise children in family homes, the area that the agency is equipped to serve.
Source: SL 1939, ch 168, § 3; SDC Supp 1960, § 55.3708; SL 1979, ch 170, § 3; SL 1985, ch 211, § 10.
26-6-15.1. Additional number of children in day care--Staff-to-child ratios.
In addition to the number of children for which a family day care home, group family day care home, or day care center is registered or licensed to provide care pursuant to § 26-6-15, the facility may care for the following numbers of children, if the children are of school age, beyond the grade of kindergarten, receive services only before or after school hours, or if the additional children are at the facility because of family emergency or special circumstance:
(1) Family day care homes--no more than two additional children;
(2) Group family day care homes--no more than three additional children; and
(3) Day care centers--no more than twenty percent of the number of children for which the day care center is licensed.
Any additional children in care pursuant to §§ 26-6-14, 26-6-15.1, and 26-6-15.2 shall be counted in maintaining staff-to-child ratios as prescribed by the Department of Social Services.
Source: SL 1988, ch 207, § 1; SL 1996, ch 170.
26-6-15.2. Additional number of children in day care center operating preschool program.
Any day care center operating a preschool program may provide care for an additional number of children, not to exceed ten percent of the number of children for which the center is licensed pursuant to § 26-6-15, if the additional children are in attendance at the center only for the preschool program and the center meets staff-to-child ratios set by the Department of Social Services.
Source: SL 1988, ch 207, § 2.
26-6-16. Rules for child care by licensed or registered agencies promulgated by department--Matters included in rules.
The Department of Social Services shall promulgate rules pursuant to chapter 1-26 to establish standards of care of children outside their own homes by licensed or registered child welfare agencies. The rules may not include requirements as to incorporation as nonprofit entities, but may include:
(1) Qualifications and training of personnel engaged in child care services;
(2) Requirements relating to safety, sanitation, condition, maintenance, and approval of physical plant and equipment utilized in child care;
(3) Recordkeeping requirements to ensure compliance with this chapter;
(4) The keeping of health records for children in care, those persons providing care, and other persons present in the care setting;
(5) The numbers, ages, and sex of children cared for;
(6) Program policies and standards of operation regarding the health and safety of children;
(7) Requirements to have policies on fees, payments, and refunds for services paid for directly or indirectly out of public funds;
(8) Health and nutrition standards and medication control;
(9) Conditions which must be met for the issuance of a provisional license;
(10) Criminal offenses, including felonies and misdemeanors under federal and state law, the commission of which renders an applicant ineligible for the grant or retention of a license under §§ 26-6-14.3 to 26-6-14.7, inclusive, or the commission of which is grounds for preventing other persons specified in § 26-6-14.4 from having contact or employment with a child welfare agency; and
(11) Such other provisions as may be required for federal financial participation.
Source: SL 1939, ch 168, § 2; SDC Supp 1960, § 55.3707; SL 1965, ch 248, § 2; SL 1979, ch 170, § 4; SL 1981, ch 199, § 12; SL 1988, ch 208, § 6; SL 1988, ch 209, § 2; SL 1988, ch 210; SL 1996, ch 171.
26-6-18. Repealed by SL 2012, ch 151, § 7.
26-6-18.1. Establishment and support of day care centers by counties and municipalities.
The boards of county commissioners of the several counties and the governing boards of municipalities may establish and maintain day care centers as defined in subdivision 26-6-14(3), and may contribute sums of money annually to establish, promote, and support nonprofit organizations engaged in such programs.
Source: SL 1975, ch 69, § 1.
26-6-18.3. Appropriation for day care centers.
For the purpose of carrying out the provisions of §§ 26-6-18.1 to 26-6-18.4, inclusive, the boards of county commissioners and the governing bodies of municipalities shall appropriate the necessary money from their general fund.
Source: SL 1975, ch 69, § 1; SL 1985, ch 77, § 14; SL 1986, ch 27, § 8.
26-6-18.4. Approved programs required for payments to nonprofit organizations--Records and periodic audit.
Payments to nonprofit organizations engaged in these programs shall be based on programs previously approved by the governing boards. Complete records on all their activities and a certified audit of these records shall be submitted to the governing boards upon demand and at the close of each fiscal period.
Source: SL 1975, ch 69, § 2.
26-6-18.5. Exemption of program from zoning, building and fire and life safety codes.
A county or municipality may exempt a day care program from its zoning, uniform building, and fire and life safety code provisions if the day care program is accessory to a church, nonprofit youth organization, hospital, public or private school, commercial building, or office building.
Source: SL 1989, ch 138, § 3.
26-6-19. Department of Health visitations and inspections.
The State Department of Health and its duly authorized agent may visit any child welfare agency to advise the agency on matters affecting the health of children and to inspect the sanitation of the buildings used for their care.
Source: SL 1939, ch 168, § 4; SDC Supp 1960, § 55.3709.
26-6-20. Records on children in care of agencies--Information confidential.
Each child welfare agency shall keep and provide records regarding each child in its control and care to the Department of Social Services as the department may require. All records regarding children and all facts learned about children and their parents or relatives are confidential.
Source: SDC 1939, § 43.0319; SL 1939, ch 168, § 4; SDC Supp 1960, § 57.3709; SL 2014, ch 129, § 1.
26-6-20.1. Definition of terms.
Terms used in §§ 26-6-20.1 to 26-6-20.10, inclusive, unless the context otherwise requires mean:
(1) "Group homes or care centers," facilities licensed pursuant to the provisions of subdivision 26-6-14(1).
(2) "Residents," persons committed or cared for in any home, center, or other facility which is subject to the provisions of §§ 26-6-20.1 to 26-6-20.10, inclusive.
Source: SL 1977, ch 279, § 1.
26-6-20.2. Separation of residents' moneys required of homes and centers.
Every group home or care center, which holds moneys and funds of residents of such home, or center, shall keep such moneys and funds separate, intact, and free from any liability which the facility incurs.
Source: SL 1977, ch 279, § 2.
26-6-20.3. Demand trust account deposit of moneys not kept in center--Deposit with state treasurer by public agency.
Residents' moneys not kept in the center, home, or facility, shall be deposited in a demand trust account in a local bank authorized to do business in South Dakota, except, however, that a public agency which is subject to §§ 26-6-20.1 to 26-6-20.10, inclusive, shall deposit such funds with the state treasurer in the appropriate trust and agency account for the facility.
Source: SL 1977, ch 279, § 5.
26-6-20.4. Deposit of money for resident when over specified amount.
If the amount of money entrusted to a home, center, or facility covered pursuant to the provisions of §§ 26-6-20.1 to 26-6-20.10, inclusive, exceeds the amount of sixty dollars for any resident, any money in excess of that amount shall be deposited in a demand trust account pursuant to the provisions of § 26-6-20.3.
Source: SL 1977, ch 279, § 4; SL 2015, ch 150, § 1.
26-6-20.5. Surety bond required of facility handling more than specified monthly amount--Bond amount.
Each group home or care center, covered by §§ 26-6-20.1 to 26-6-20.10, inclusive, which is handling or will handle money on a monthly basis of over fifty dollars per resident per month, or over five hundred dollars for all residents per month, shall file with the agency licensing the facility, a surety bond in the following amounts; if the amount to be handled is seven hundred fifty dollars per month or less the bond required shall be one thousand dollars, if the amount to be handled is seven hundred fifty one dollars to one thousand five hundred dollars the bond required shall be two thousand dollars and if the amount to be handled is one thousand five hundred one dollars to two thousand five hundred dollars the bond required shall be three thousand dollars. Every further increment of one thousand dollars or fraction thereof shall require an additional one thousand dollars on the bond.
Source: SL 1977, ch 279, § 9.
26-6-20.6. Safeguards and records required of facilities.
Every group home or care center, or other facility covered by the provisions of §§ 26-6-20.1 to 26-6-20.10, inclusive, shall, in addition to the requirements of § 26-6-20.2, maintain adequate safeguards and accurate records of residents' moneys and funds which are entrusted to their care. These safeguards and records shall include, but not be limited to, the following:
(1) Records of residents' moneys which are maintained as a trust account shall include a control account for all the receipts and expenditures, an account for each resident and supporting vouchers filed in chronological order. Each account shall be kept current with columns for debits, credits and balance.
(2) Records of residents' moneys and funds entrusted to the home, or facility for safekeeping, shall include a copy of the receipt furnished to the resident or to the person or agency responsible for the resident.
Source: SL 1977, ch 279, § 3.
26-6-20.7. Public audit of records.
Records which are maintained pursuant to §§ 26-6-20.1 to 26-6-20.10, inclusive, to account for residents' funds and valuables, shall be made available to a public audit of the home, center, or other facility, which is required to keep and maintain the same.
Source: SL 1977, ch 279, § 7.
26-6-20.8. Revocation of license--Cause.
Failure of any group home or care center to keep complete records or to comply with any other provision of §§ 26-6-20.1 to 26-6-20.10, inclusive, shall constitute cause for revocation of the licenses held by the administrator or operator of such homes, centers, or facilities.
Source: SL 1977, ch 279, § 8; SL 2021, ch 116, § 1.
26-6-20.9. Surrender of moneys and funds upon discharge of resident--Receipt--Deposited funds.
Upon discharge of a resident, all moneys and funds of that resident which have been entrusted to the home, center, or other facility covered by §§ 26-6-20.1 to 26-6-20.10, inclusive, shall be surrendered to the resident, his guardian, conservator, or to his parents if a minor, in exchange for a signed receipt. Moneys and valuables kept within the facility shall be surrendered upon demand, and those kept in a demand trust account shall be made available within ten business days.
Source: SL 1977, ch 279, § 6.
26-6-20.10. Escheat of unclaimed property under specified value after death of resident--Notice to relatives--Time--Disposition of property or money.
If, upon the death of a resident and after notification to a known guardian or conservator or relatives of property belonging to the resident, not exceeding two hundred dollars in value, the property remains unclaimed for sixty days, such property shall escheat directly to the state notwithstanding chapter 21-36. The home, center, or other facility shall notify the office of surplus property of the unclaimed property. However, all money, stocks, bonds, contracts, and claims on banks which can readily be converted to money shall be sent to the state treasurer for deposit in the general fund.
Source: SL 1977, ch 279, § 10; SL 1993, ch 213, § 118.
26-6-21. Placement of children for adoption--Consent by agency to adoption.
Any licensed child welfare agency may place children in family homes for care or for adoption if authorized to do so in the license issued by the Department of Social Services. Whenever a child welfare agency licensed to place children for adoption shall have been given the permanent care, custody, and guardianship of any child and the rights of the parent or parents of such child shall have been terminated by order of a court of competent jurisdiction, the child welfare agency may consent to the adoption of such child pursuant to the statutes regulating adoption proceedings.
Source: SL 1939, ch 168, § 7; SDC Supp 1960, § 55.3712.
26-6-22. Notice to remove child from child welfare agency.
If at any time the Department of Social Services finds that a child in a child welfare agency is subject to undesirable influences or lacks proper and wise care and management, it shall notify the child welfare agency who has placed the child in the agency to remove him from the agency.
Source: SL 1939, ch 168, § 6; SDC Supp 1960, § 55.3711; SL 1985, ch 211, § 12.
26-6-23. Grounds for revocation or refusal to issue or renew child welfare agency license or registration.
The Department of Social Services may revoke or refuse to issue or renew any license or registration certificate of a child welfare agency if the applicant, licensee, or registrant willfully and substantially:
(1) Fails to meet the department's standards for licensure or registration;
(2) Fails to maintain standards as promulgated by the department;
(3) Violates any of the provisions of this chapter;
(4) Furnishes or makes any misleading or false statement or report to the department;
(5) Refuses to submit to the department any reports or records required by the department in making investigation of the facility for licensing purposes;
(6) Fails or refuses to submit to an investigation by the department;
(7) Fails or refuses to admit authorized representatives of the department at any reasonable time for the purpose of investigation;
(8) Fails to provide, maintain, equip, and keep in safe and sanitary condition premises established or used for child care as required under standards prescribed by the department, or as otherwise required by any law, regulation or ordinance available to the location of the facility;
(9) Refuses to display its license or certificate;
(10) Fails to exercise reasonable care in the hiring, training, and supervision of facility personnel;
(11) Fails to report suspected child abuse or neglect pursuant to chapter 26-10; or
(12) Refuses to submit to the department any records or information relative to the background and experience of the personnel of the facility or persons residing at the address of the facility.
Source: SL 1939, ch 168, § 5; SDC Supp 1960, § 55.3710; SL 1979, ch 170, § 5; SL 1988, ch 211, § 1.
26-6-23.1. Revocation or refusal to issue or renew license or registration for child abuse or violence.
The department may revoke or refuse to issue or renew the license or registration certificate of any child welfare agency if the owner or operator of the agency, a staff member, a member of the facility owner's family residing at the facility, or any other resident of the facility has been found guilty of an offense involving abuse or neglect of a child or violence against a person or who has a substantiated report of abuse or neglect as defined by the department by rule or whose name appears on a report from any other state's central registry of abuse or neglect.
Source: SL 1988, ch 211, § 2; SL 1989, ch 225; SL 1991, ch 217, § 172; SL 1992, ch 181.
26-6-23.2. Central registry background checks on employees.
The department shall conduct central registry background checks on all known employees of any child welfare agency.
Source: SL 1988, ch 211, § 3.
26-6-24. Notice of intended revocation or refusal of renewal of license or registration--Hearing on protest--Temporary suspension.
No license or registration certificate of a child welfare agency may be revoked or renewal refused, unless the holder of the license or registration certificate is given notice by registered mail of the facts or conduct which warrant the intended action. If the intended action is protested, a hearing shall be held pursuant to chapter 1-26. The Department of Social Services may temporarily suspend a registration certificate or license if the health, safety, or welfare of the persons served by the child welfare agency are in imminent danger or if the agency is substantially out of compliance with the requirements for licensing. Upon request of an aggrieved party, a hearing shall be held pursuant to chapter 1-26.
Source: SL 1939, ch 168, § 5; SDC Supp 1960, § 55.3710; SL 1979, ch 170, § 6; SL 1985, ch 211, § 13; SL 1993, ch 199.
26-6-25. Investigation by department of unlicensed and unregistered operations--Further action by department.
Whenever the Department of Social Services is advised or has reason to believe that any person is conducting or maintaining a child welfare agency without a license or registration certificate as required by this chapter, it shall have an investigation made. If the person is conducting a child welfare agency, it shall either issue a license or registration certificate or take action to prevent continued operation of the agency.
Source: SL 1939, ch 168, § 6; SDC Supp 1960, § 55.3711; SL 1979, ch 170, § 7.
26-6-27. Educational and incidental activities exempt from chapter--State institutions.
Nothing contained in this chapter applies to educational services performed by an institution, school, or nursery school if the care and maintenance of children is only incidental to the operation of the school, to services performed by summer or recreational camps designed primarily for character building or recreation, to the care of children by a relative, to the casual care of children by a baby sitter, or to the exchange of care of children by parents under informal mutual arrangements, to care furnished by a guardian or by institutions operated by other departments of state government.
For the purposes of this chapter, "casual care of children" is employment which is irregular or intermittent and which is not performed by an individual whose vocation is babysitting and which does not exceed twenty sitter hours rendered to not more than six children per week.
Source: SDC Supp 1960, § 55.3706 as added by SL 1965, ch 248, § 1; SL 1972, ch 153; SL 1979, ch 170, § 8; SL 1993, ch 213, § 119.
26-6-28. Reduction of number of children in foster care.
Each year, the Department of Social Services shall reduce the number of children who have been in foster care more than twenty-four months and who have received or are receiving assistance under Title IV-E of the Social Security Act. The amount of the reduction shall be one-half of one percent of the number of foster children in care during the preceding federal fiscal year.
Source: SL 1982, ch 199; SL 2004, ch 167, § 5.
26-6-29. Shelters for battered spouses exempt.
This chapter does not apply to agencies which provide shelter, food, or counseling to a battered spouse and his children if the parent remains responsible for the care of his child.
Source: SL 1985, ch 211, § 16.
26-6-35. Foster care for person under continuing juvenile jurisdiction who is over the age of majority.
Notwithstanding the provisions of §§ 26-1-1, 26-6-6.1, and 26-7A-101, a child welfare agency and the Department of Corrections may provide foster care for a person over the age of majority but less than twenty-one years of age if the person is under the continuing juvenile jurisdiction of the Department of Corrections.
Source: SL 2007, ch 163, § 1.
26-6-36. Definitions relating to religious child-placement agencies.
Terms used in §§ 26-6-36 to 26-6-50, inclusive, mean:
(1) "Child-placement agency," a private organization that receives and places children in foster homes or for adoption, with or without compensation, as a regular activity of that organization or that performs those services as an adjunct to other regular activities;
(2) "State benefit program," any program administered or funded by the state or by any agent on behalf of the state that provides cash, payments, grants, contracts, loans or in-kind assistance;
(3) "State,":
(a) The State of South Dakota or any political subdivision thereof;
(b) Any agency of the State of South Dakota or of a political subdivision of the state including any department, bureau, board, commission, council, court, or public institution of higher education;
(c) Any person acting under the authority of state law.
Source: SL 2017, ch 114, § 1.
26-6-37. Adverse action defined.
For the purposes of §§ 26-6-36 to 26-6-50, inclusive, the term, adverse action, means any action that directly or indirectly adversely affects a child-placement agency or organization seeking to become a child-placement agency, places the child-placement agency or organization in a worse position than it was in before the action was taken, or is likely to deter a child-placement agency or organization from acting or refusing to act. The term includes, without limitation, the following:
(1) Altering in any way the tax treatment of, or causing any tax, penalty, or payment to be assessed against, or denying, delaying, revoking, or otherwise making unavailable an exemption from taxation;
(2) Disallowing, denying, or otherwise making unavailable a deduction for state tax purposes of any charitable contribution made to an organization;
(3) Denying an application for, refusing to renew, or canceling any benefit from a state benefit program or other funding;
(4) Declining to enter into, refusing to renew, or canceling a contract;
(5) Declining to issue, refusing to renew, or canceling a license;
(6) Imposing, levying, or assessing a monetary fine, fee, penalty, damages, award, or injunction;
(7) Taking any enforcement action;
(8) Discriminating against an organization in regard to participation in a state benefit program;
(9) Limiting the ability of a person to engage in child-placement services; or
(10) Taking any action that materially alters the terms or conditions of funding or a contract or license.
Source: SL 2017, ch 114, § 2.
26-6-38. Child-placement agency not required to provide service that conflicts with sincere written religious policy.
No child-placement agency may be required to provide any service that conflicts with, or provide any service under circumstances that conflict with any sincerely-held religious belief or moral conviction of the child-placement agency that shall be contained in a written policy, statement of faith, or other document adhered to by a child-placement agency.
If a child-placement agency declines to provide any services, the child-placement agency shall provide in writing information advising the applicant of the Department of Social Services website and a list of licensed child-placement agencies with contact information.
Source: SL 2017, ch 114, § 3.
26-6-39. State may not take adverse action against child-placement agency acting on basis of sincere written religious policy.
The state may not discriminate or take any adverse action against a child-placement agency or an organization seeking to become a child-placement agency on the basis, wholly or partly, that the child-placement agency has declined or will decline to provide any service that conflicts with, or provide any service under circumstances that conflict with the agency's written sincerely-held religious belief or moral conviction of the child-placement agency.
The state may not enter into a contract that is inconsistent with, would in any way interfere with, or would in any way require an organization to surrender any right created in §§ 26-6-36 to 26-6-50, inclusive.
Source: SL 2017, ch 114, § 4.
26-6-40. Licensure and state benefit programs available to religious child-placement agency.
Any faith-based or religious child-placement agency or organization that seeks to become a child-placement agency is eligible, on the same basis as any other child-placement agency or organization, to receive a license or participate in a state benefit program. The state may not discriminate against a faith-based or religious organization on the basis, wholly or partly, of the organization's religious character or affiliation.
Source: SL 2017, ch 114, § 5.
26-6-41. Religious child-placement agency to be independent from state.
A faith-based or religious child-placement agency that enters into a contract with the state or participates in a state benefit program for child-placement services shall retain the agency's independence from the state, including the child-placement agency's control over the definition, development, practice, and expression of the agency's written religious beliefs and moral convictions; the agency's hiring and employment practices; and decisions as to whether any child-placement service conflicts with any sincerely-held religious belief or moral conviction of the agency.
Source: SL 2017, ch 114, § 6.
26-6-42. Child-placement agency may not decline service on basis of race, ethnicity, or national origin.
No provision of §§ 26-6-36 to 26-6-50, inclusive, may be construed to allow a child-placement agency to decline to provide a service on the basis of a person's race, ethnicity, or national origin. Due regard shall be afforded to the Indian Child Welfare Act (25 U.S.C. §§ 1901-1963), if that Act is applicable.
Source: SL 2017, ch 114, § 7; SL 2019, ch 127, § 4.
26-6-43. Claim or defense based on §§ 26-6-36 to 26-6-50.
A person may assert a violation of §§ 26-6-36 to 26-6-50, inclusive, as a claim against the state in any judicial or administrative proceeding or as a defense in any judicial or administrative proceeding without regard to whether the proceeding is brought by or in the name of the state, a private person, or any other party. Notwithstanding any other provisions of law, an action under the provisions of §§ 26-6-36 to 26-6-50, inclusive, may be commenced, and relief may be granted, in a court of the state without regard to whether the person commencing the action has sought or exhausted any available administrative remedies.
Source: SL 2017, ch 114, § 8.
26-6-44. Relief available for successful claim or defense.
Any person who successfully asserts a claim or defense pursuant to §§ 26-6-36 to 26-6-50, inclusive, may recover the following:
(1) Declaratory relief;
(2) Injunctive relief to prevent or remedy a violation of the provisions of §§ 26-6-36 to 26-6-50, inclusive, or the effects of that violation; and
(3) Any other relief authorized by law.
Source: SL 2017, ch 114, § 9.
26-6-45. Sovereign immunity not waived.
A person may sue the state for the relief allowed pursuant to §§ 26-6-36 to 26-6-50, inclusive. However, no provision of §§ 26-6-36 to 26-6-50, inclusive, otherwise waives the sovereign immunity of the state.
Source: SL 2017, ch 114, § 10.
26-6-46. Broad protection of free exercise of religious beliefs and moral convictions.
The provisions of §§ 26-6-36 to 26-6-50, inclusive, shall be construed in favor of a broad protection of free exercise of religious beliefs and moral convictions, to the maximum extent afforded by the federal and state constitutions. The protection of free exercise of religious beliefs and moral convictions afforded by §§ 26-6-36 to 26-6-50, inclusive, is in addition to the protections provided under federal law, state law, and the federal and state constitutions. Nothing in this section may be construed to:
(1) Preempt or repeal any state or local law that is equally or more protective of free exercise of religious beliefs or moral convictions;
(2) Narrow the meaning or application of any state or local law protecting free exercise of religious beliefs or moral convictions; or
(3) Prevent the state from providing, either directly or through an individual or entity not seeking protection under §§ 26-6-36 to 26-6-50, inclusive, any benefit or service authorized under state law.
Source: SL 2017, ch 114, § 11.
26-6-47. Other law in conflict preempted.
The provisions of §§ 26-6-36 to 26-6-50, inclusive, apply to, and in cases of conflict, supersede any other provision of law that impinges upon the free exercise of religious beliefs and moral convictions protected pursuant to §§ 26-6-36 to 26-6-50, inclusive, unless a conflicting law is expressly made exempt from the application of the provisions of §§ 26-6-36 to 26-6-50, inclusive.
Source: SL 2017, ch 114, § 12.
26-6-48. Time for asserting claim.
To assert a claim under the provisions of §§ 26-6-36 to 26-6-50, inclusive, a person shall bring an action no later than two years after the date the person knew or should have known that discrimination occurred or an adverse action was taken against the person.
Source: SL 2017, ch 114, § 13.
26-6-49. Construction with federal law.
The provisions of §§ 26-6-36 to 26-6-50, inclusive, apply to any foster care or adoption placement for which a child-placement agency has received funding for that particular placement comprised in part of a federal subsidy only to the fullest extent allowed under federal law.
Source: SL 2017, ch 114, § 14.
26-6-50. Other child-placement agencies not limited by actions of religious child-placement agency--Best interest of child.
If a child-placement agency declines to provide any services under § 26-6-38, the child-placement agency's decision does not limit the ability of another child-placement agency to provide those services and shall not be a factor in determining whether a placement in connection with the service is in the best interest of the child.
Source: SL 2017, ch 114, § 15.
26-6-51 . Monitor--Designation--Primary duty.
The secretary of the Department of Social Services shall designate a person or entity outside the Department of Social Services to serve as the monitor and whose primary responsibility is to receive and resolve complaints related to the quality of care provided to youth placed in the custody or care of any of the following:
(1) An intensive residential treatment center, a residential treatment center, or a group care center, as defined in § 26-6-14 ;
(2) An independent living preparation program as defined in § 26-6-14 ; or
(3) A shelter care facility as defined in § 26-6-1.2 .
The monitor shall be a mandatory reporter pursuant to § 26-8A-3 .
Source: SL 2020, ch 107, § 2.
26-6-52 . Monitor--Powers and duties.
The monitor designated as provided in § 26-6-51 shall:
(1) Investigate and resolve complaints related to the quality of care provided to youth placed in the custody or care of a facility, center, or program as provided in § 26-6-51 ;
(2) Access any youth in the custody or care of a facility, center, or program as provided in § 26-6-51 and any person in the employ of a facility, center, or program as provided in § 26-6-51 ;
(3) Access any records of or relating to any youth in the custody or care of a facility, center, or program as provided in § 26-6-51 ;
(4) Provide an annual report to the secretary of the Department of Social Services that reflects the number of referrals to the monitor, the number of investigations completed, and a summary of other activities performed by the monitor;
(5) Provide an annual report to the Government Operations and Audit Committee created in § 2-6-2 that, in addition to the information stipulated in subdivision (4), includes a confidential addendum. Notwithstanding the provisions of §§ 26-6-54 and 26-6-57, the confidential addendum shall contain a description of each investigation, the specific findings and recommendations of the monitor, and the response of the Department of Social Services to the recommendations;
(6) Provide reasonable notification of the existence and role of the monitor to any youth in the custody or care of a facility, center, or program as provided in § 26-6-51 , and to the youth's custodial parent or guardian; and
(7) Provide recommendations for corrective action to address any complaint received related to the quality of care provided to the youth.
Source: SL 2020, ch 107, § 3.
26-6-53 . Findings of abuse or neglect--Report.
If the monitor has reasonable cause to suspect that a youth under the age of eighteen has been abused or neglected as defined in § 26-8A-2 , the monitor shall immediately report that information to the Division of Child Protection of the Department of Social Services. Any investigation conducted by the monitor shall be independent and separate from any investigation required in § 26-8A-9 .
Source: SL 2020, ch 107, § 4.
26-6-54 . Persons requesting assistance--Identity--Confidentiality.
For purposes of any audit, report, evaluation, or public testimony that may be permitted or required under §§ 26-6-52 to 26-6-57, inclusive, no disclosure of the identity of, or any other personally identifiable information related to, any youth or any person requesting assistance under §§ 26-6-52 to 26-6-57, inclusive, may be required. The identity of any person making a report to the monitor is confidential.
Source: SL 2020, ch 107, § 5.
26-6-55 . Hinderance of monitor--Violation as misdemeanor.
A person who knowingly hinders the lawful actions of the monitor is guilty of a Class 1 misdemeanor.
Source: SL 2020, ch 107, § 6.
26-6-56 . Retaliatory acts--Prohibition--Violation as misdemeanor.
No state agency, facility, center, or program as provided in § 26-6-51 , and no individual acting for a state agency or a facility, center, or program as provided in § 26-6-51 may take any adverse action against an individual in retaliation because the individual cooperated with or provided information to the monitor. A violation of this section is a Class 1 misdemeanor.
Source: SL 2020, ch 107, § 7.
26-6-57 . Persons making report--Identity--Confidentiality.
The identity of the youth and of any person or agency making a report to the monitor is confidential.
Source: SL 2020, ch 107, § 8.
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:
STATE OF SOUTH DAKOTA ) |
IN CIRCUIT COURT | |
) ss |
| |
COUNTY OF ______________) |
_____ JUDICIAL CIRCUIT | |
|
| |
THE PEOPLE OF THE STATE OF ) |
Juv. No.__________ | |
SOUTH DAKOTA IN THE INTEREST) |
| |
OF ____________________________, ) |
NOTICE TO PARENT, CUSTODIAN, | |
MINOR CHILD(REN), AND ) |
OR INDIAN TRIBE OF CHILD CUSTODY | |
CONCERNING __________________, ) |
PROCEEDINGS (ICWA) | |
_______________________________, ) |
| |
RESPONDENTS. ) |
| |
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.
26-7A-94. Provisions for payment of custodial care costs.
The following provisions govern the payment of costs of custodial care of any child who is the subject of proceedings under this chapter or chapter 26-8A, 26-8B, or 26-8C:
(1) The child's parents, guardian, or custodian shall pay the costs of custodial care of the child at all times while the child is in the custodial care of the parents, guardian, or custodian.
(2) The costs of custodial care of any child before disposition of the child shall be paid initially by the county in which the proceedings are conducted except for the costs of custodial care of an apparent or alleged abused or neglected child in the temporary custody of the Department of Social Services who is placed in a licensed foster home or in licensed facilities. Custodial care costs for such a child shall be paid by the Department of Social Services.
(3) The cost of placing any child in a detention facility after disposition shall be sustained initially by the county in which the proceedings are concluded.
(4) If the court commits a child to the Department of Corrections and the child has to await placement, the county in which the proceedings are concluded shall pay initially the costs of custodial care for seven days immediately following issuance of the final decree of disposition while the child awaits placement. After the seven-day period has expired, the Department of Corrections shall pay the costs of custodial care or reimburse the county responsible for providing that care.
(5) If the court places a child at the Human Services Center, and the child has to await placement, the county in which the proceedings are concluded shall pay the costs of custodial care for seven days immediately following issuance of the final decree of disposition. After the seven-day period has expired, the Department of Social Services shall pay the costs of custodial care or reimburse the county responsible for providing that care while the child awaits placement.
Source: SL 1977, ch 208, § 2; SL 1991, ch 217, § 88B; SDCL § 26-8-40.8; SL 1993, ch 200, § 6; SL 1993, ch 201, § 1; SL 1994, ch 216, § 1; SL 1996, ch 172, § 8; SL 1996, ch 176, § 1; SL 2011, ch 1 (Ex. Ord. 11-1), § 163, eff. Apr. 12, 2011.
26-7A-95. Parents' duty to support child--Costs of custodial care payable on demand.
Notwithstanding provisions of § 26-7A-94, the child's parents' duty to support the child continues if the child is placed in the custodial care of the Department of Social Services or another department or agency of the state, and the costs of custodial care for a child and related fees are due and payable by the child's parents on demand by the Department of Social Services or other custodial department or agency of the state or by the county.
Source: SL 1991, ch 217, § 88C.
26-7A-96. Acceptance and expenditure of additional funds for custodial care costs.
The secretary of the Department of Corrections may accept and expend for the purpose of § 26-7A-94, in addition to the amount in that section, any funds obtained from federal sources, gifts, contributions, or any other source if the acceptance and expenditure are approved in accordance with § 4-8B-10.
Source: SL 1989, ch 230, § 3; SL 1991, ch 217, § 90B; SDCL Supp, § 26-8-40.10.
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.
Any child adjudicated to be an abused or neglected child, a child in need of supervision or a delinquent child, as defined, respectively, in chapter 26-8A, 26-8B, or 26-8C, and awarded by the court to a guardian, institution, or association, shall be held by the guardian, institution, or association by virtue of the order or decree entered of record in the case. The clerk of courts shall issue to the guardian, institution, or association a certified copy of the order or decree of the court as proof of the authority of the guardian, institution, or association over the child. No other process need issue to warrant the keeping of the child. The clerk of courts shall transmit copies of the social study, any clinical reports, and other information pertinent to the care and treatment of the child to the guardian, institution, or association with the commitment order or decree.
Source: SDC 1939, § 43.0315; SL 1968, ch 164, § 12; SL 1991, ch 217, § 92B; SDCL, § 26-8-44.
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.
If it appears during the course of proceedings conducted under this chapter or chapter 26-8A, 26-8B, or 26-8C that the parent, parents, guardian, conservator, custodian, or any party named in a petition who is legally obligated to support a child is able to contribute to the support of the child, the court shall enter an order requiring the parent, parents, guardian, conservator, custodian, or other responsible party to pay to the appointed guardian or conservator or to the institution to which the child may be committed or placed or to reimburse the county which has initially borne custodial care costs pursuant to subdivision 26-7A-94(2) or (3) or (4) a reasonable amount payable periodically for the support, maintenance, and education of the child and all statutory fees and costs related to expenses incurred on behalf of the child, or any portion of them. In determining a reasonable payment, the court shall consider the responsible party's ability to pay according to the laws of the state on child support obligations. Any determination that a responsible party need not make full reimbursement of statutory fees and costs shall be justified in a specific finding, in writing or on the record. The court may also order the parent, parents, guardian, conservator, custodian, or other responsible party to furnish reasonable security for the payment of the child support, fees and costs incurred on behalf of the child, or any portion of them. Upon failure to pay, the court may enforce compliance with the order by proceeding as for civil contempt or the appointed guardian or conservator or the institution or the county may proceed to execution on the order as on a civil judgment. Periodically, the court may, on application and on the notice that the court requires, alter the obligations to pay child support, fees, and costs related to expenses incurred on behalf of the child as it considers reasonable, proper, and consistent with the best interests of the child.
Source: SDC 1939, § 43.0325; SL 1991, ch 217, § 93B; SDCL, § 26-8-45; SL 1993, ch 201, § 2; SL 1993, ch 213, § 121; SL 1996, ch 176, § 2.
26-7A-99. Order of wage assignment for support of child--Discovery of employment--Disobedience as contempt.
If a party ordered to pay child support and all statutory fees and costs related to expenses incurred on behalf of the child, or any portion of them, pursuant to § 26-7A-98 or pursuant to a court order under any other applicable statute, is employed for wages, salary, or commission, the court may order that the amount of child support, fees, and costs to be paid by the party shall be paid to the guardian or institution out of the party's wages, salary, or commission, and the party shall accordingly execute an assignment. The court may also order the party obligated to pay child support, fees, and costs, or any portion of them, to periodically make complete disclosure to the court of the party's place or places of employment and the amount and nature of earnings. If the party fails to obey the order of the court, the party may be punished as for civil contempt.
Source: SDC 1939, § 43.0326; SL 1991, ch 217, § 94B; SDCL, § 26-8-46.
26-7A-100. Conservatorship of estate of child.
Unless otherwise specifically ordered by the court in its order or decree, nothing in this chapter or in chapter 26-8A, 26-8B, or 26-8C gives the conservatorship of the estate of the child to any guardian appointed or changes the age of minority of a child for any purpose unless the child is a person under twenty-one years of age who is under the continuing jurisdiction of the court, as defined in § 26-7A-1, is under commitment to the Department of Corrections or is under continuing foster care pursuant to § 26-6-6.1. However, the court may appoint a conservator of the estate of a child who is under the age of eighteen years if the child is within the jurisdiction of the court and the court specifically finds that appointment of a conservator of the estate of the child is necessary and appropriate under the circumstances and is in the best interests of the child.
Source: SDC 1939, § 43.0330; SL 1991, ch 217, § 95B; SDCL, § 26-8-47; SL 1993, ch 213, § 122; SL 1996, ch 172, § 9.
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.
Except as provided in § 26-11A-21, guardianship or conservatorship of a child under this chapter or chapter 26-8A, 26-8B, or 26-8C shall continue until the court orders otherwise, but not after the child has attained the age of majority except as stated in § 26-7A-100. The child or any person interested in the child may from time to time, upon a proper showing, apply to the court for the appointment of a new guardian or conservator, for the restoration of the child to the custody of the child's parents, if parental rights have not been terminated, or the child's former guardian or custodian, or for the discharge of the guardian or conservator appointed by the court at the final disposition of the child.
Source: SDC 1939, § 43.0315; SL 1968, ch 164, § 12; SL 1972, ch 154, § 8; SL 1991, ch 217, § 96B; SDCL, § 26-8-48; SL 1993, ch 213, § 123; SL 1996, ch 172, § 10.
26-7A-102. Jurisdiction of court.
If the court commits the child to the Department of Corrections, the court's jurisdiction shall be limited to § 26-7A-122. In all other cases, court has continuing jurisdiction over children placed or committed under this chapter or chapter 26-8A, 26-8B, or 26-8C regardless of the location of the children.
Source: SDC 1939, § 43.0328; SL 1968, ch 164, § 17; SL 1991, ch 217, § 97B; SDCL, § 26-8-50; SL 1996, ch 172, § 11.
26-7A-103. Court order for report by guardian or institution.
The court may require any guardian, institution, or association having custodial care of a child under this chapter or chapter 26-8A, 26-8B, or 26-8C to submit to the court a complete report on the party's actions regarding the child in the manner and form and at the time directed by the court.
Source: SDC 1939, § 43.0317; SL 1951, ch 222, § 2; SL 1991, ch 217, § 98B; SDCL, § 26-8-51.
26-7A-104. Review dispositional hearing to remove guardian or institution or restore child to parents.
On consideration of the report of the guardian, institution, or association submitted to the court pursuant to § 26-7A-103, except for a child committed to the Department of Corrections, the court may conduct a review dispositional hearing and:
(1) Remove the guardian and appoint another party to act as guardian for the child;
(2) Remove the child from the institution or association and place the child in another institution or association as determined by the court; or
(3) Restore the child to the custody of either or both of the child's parents, if parental rights have not been terminated, or to the custody of the child's former guardian or custodian existing at commencement of the action, with or without supervision, probation, or other conditions imposed by the court consistent with the best interests of the child and with due regard to the rights and interests of the child's parents, guardian, custodian, the public, and the state.
Source: SDC 1939, § 43.0317; SL 1951, ch 222, § 2; SL 1991, ch 217, § 99B; SDCL, § 26-8-52; SL 1996, ch 172, § 12.
26-7A-105. Child not disqualified from public office, civil service, or military service--Not a criminal conviction.
No adjudication or disposition under this chapter or chapter 26-8A, 26-8B, or 26-8C may cause disqualification or ineligibility of a child for any public office, civil service, or military service. No child may be termed a criminal because of any adjudication or disposition, nor may any adjudication or disposition be considered to be a conviction.
Source: SDC 1939, § 43.0327; SL 1968, ch 164, § 16; SL 1991, ch 217, § 101B; SDCL, § 26-8-56.
26-7A-106. Proceedings not admissible in criminal or civil action against child.
No adjudication, disposition, or evidence given in any proceedings under this chapter or chapter 26-8A, 26-8B, or 26-8C is admissible against a child in any criminal, civil, or other proceeding, except in subsequent proceedings under this chapter and related chapter 26-8C regarding the delinquency of the same child and in subsequent criminal proceedings concerning the same child for sentencing purposes.
Source: SDC 1939, §§ 43.0301, 43.0327; SL 1968, ch 164, § 16; SL 1978, ch 192, § 1; SL 1991, ch 217, § 102B; SDCL, § 26-8-57.
26-7A-107. Order of protection--Authorized provisions--Termination, modification or extension of order.
The court may make an order of protection in assistance of, or as a condition of, any decree of disposition authorized by this chapter or chapter 26-8A, 26-8B, or 26-8C. The order of protection may set forth reasonable conditions of behavior to be observed for a specified period by the child's parents, guardian, custodian, or any other person who is a party to such proceedings.
The order of protection may require any concerned person or party:
(1) To stay away from a child or the child's home;
(2) To permit a parent or other person to visit a child at stated periods and places, with or without supervision;
(3) To abstain from offensive conduct against a child or the child's parents, guardian, custodian, or any other person having custody or temporary care of the child;
(4) To give proper attention to the care, maintenance, and supervision of the child, and the child's home;
(5) To cooperate in good faith with the Department of Social Services, court services, or any other agency which has been given custody or temporary custody of a child, which is providing protective supervision or probation supervision of a child pursuant to court order, or to which the child has been referred by the court;
(6) To refrain from acts of commission or omission that tend to make a home an improper place for a child;
(7) To pay child support and all statutory fees and costs related to expenses incurred on behalf of the child, or any portion of them, as determined by the court;
(8) To cooperate with and participate in any physical or mental examination or evaluation, counseling, treatment, therapy, or child care or parenting classes considered necessary by the court for the benefit of the child;
(9) To take all reasonable steps necessary to insure the child's regular school attendance;
(10) To eliminate the specific conditions constituting or contributing to the problems which led to juvenile court action; and
(11) To take all reasonable steps necessary to insure the child's completion of court-ordered sanctions, treatment, therapy, counseling, or rehabilitation.
After notice and opportunity for a hearing is given to any person or party subject to an order of protection, the order may be terminated, modified, or extended for a specified period of time if the court finds it in the best interests of the child, the public and the state. This provision is in addition to, and not a limitation of, §§ 26-7A-107.1 and 26-7A-107.2.
Source: SDC 1939, § 43.0328 as added by SL 1968, ch 164, § 17; SL 1990, ch 198, § 1; SL 1991, ch 217, § 103B; SDCL Supp, § 26-8-59; SL 1996, ch 177, § 1.
26-7A-107.1. Provisions for violation of order of protection.
The following provisions apply if a person is alleged to have violated the terms and conditions of an order of protection entered pursuant to this chapter:
(1) The court shall set a hearing on the alleged violation and shall give five days' notice to the person subject to the order of protection, and to any other parties to the proceedings;
(2) The person alleged to have violated the order of protection shall be given a written statement concerning the alleged violation;
(3) The person may be represented by legal counsel at the hearing and shall be 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 person violated the terms and conditions of the order of protection, the court may modify the terms and conditions of the order, or take other action permitted by applicable law, including sanctions provided for under criminal or civil contempt, which is in the best interests of the child and the public.
Source: SL 1996, ch 177, § 2.
26-7A-107.2. Violation of order of protection as a misdemeanor.
If an order of protection is granted pursuant to this chapter, and the person whose conduct is to be restrained or otherwise controlled knows or has reason to know of the order, a violation of the order is a Class 2 misdemeanor. Any proceeding under this chapter is in addition to other civil or criminal remedies.
Source: SL 1996, ch 177, § 3.
26-7A-108. Modifying or setting aside order or decree--Hearing required on probation violation or change in legal custody.
The court may modify or set aside any order or decree made by it, except a decree terminating parental rights. No modification of an order or decree may be made without a hearing if a violation of the terms of probation governing a child in need of supervision or a delinquent child is alleged or if the effect of modifying or setting aside the order or decree would be to deprive a parent of custody of a child or make a change in custody, except temporary custody, with or without court order, pursuant to provisions of this chapter or chapter 26-8A, 26-8B, or 26-8C.
Source: SDC 1939, § 43.0328 as added by SL 1968, ch 164, § 17; SL 1991, ch 217, § 104B; SDCL, § 26-8-61.
26-7A-108.1. Suspension of probationary period under certain conditions.
The running of a juvenile probationer's probationary period shall be suspended if:
(1) The juvenile probationer absconds from supervision;
(2) Any petition to modify or revoke a term of probation is filed; or
(3) A probation violation report is filed during any pending court proceeding related to the filing of the violation report.
Source: SL 2017, ch 117, § 1.
26-7A-109. Petition for modification or termination of custody decree on change of circumstances.
If custody of a child has been vested by the court in an individual, institution, or agency, other than the Department of Corrections, a parent whose parental rights have not been terminated, or a former guardian or custodian of the child may petition the court for restoration of custody or other modification or termination of the prior custodial order or decree on the ground that a change of circumstances has occurred which requires the modification or termination in the best interests of the child, the public and the state.
Source: SDC 1939, § 43.0328 as added by SL 1968, ch 164, § 17; SL 1991, ch 217, § 105B; SDCL, § 26-8-62; SL 1996, ch 172, § 13.
26-7A-110. Petition for new hearing on ground of new evidence.
A child or a child's parents, guardian, custodian, or guardian ad litem may petition the court for a new hearing related to adjudication or disposition on the ground that new evidence has been discovered which was not known and could not with due diligence have been made available at the original adjudicatory or dispositional hearing and which might affect the order or the decree resulting from the hearing. A noticed hearing on the petition shall be conducted as required by the court. If the court finds at the hearing on the petition that new evidence exists which might affect the original order or decree, the court shall order a new hearing and shall proceed with a revised determination of the case as warranted by the evidence and applicable law.
Source: SDC 1939, § 43.0328 as added by SL 1968, ch 164, § 17; SL 1991, ch 217, § 106B; SDCL, § 26-8-63.
26-7A-111. Interstate compacts not affected by provisions.
Provisions of this chapter and chapters 26-8A, 26-8B, and 26-8C do not affect the "Interstate Compact on Juveniles" in chapter 26-12 or "Interstate Compact on Placement of Children" in chapter 26-13. In the event of any inconsistency or conflict, the provisions of chapter 26-12 and 26-13 take precedence.
Source: SL 1968, ch 164, § 19; SL 1991, ch 217, § 107B; SDCL, § 26-8-64.
26-7A-112. Rules of procedure govern appeals--Notice to attorney general.
An intermediate appeal or an appeal may be taken from a judgment, decree, or order under the provisions of this chapter and chapters 26-8A, 26-8B, and 26-8C according to the rules of procedure governing civil appeals. The appellant shall also serve the written notice of appeal and docketing statement upon the state's attorney of the county where the judgment, decree, or order was entered and upon the attorney general. The failure to serve the attorney general does not constitute a jurisdictional bar to the appeal. Initials shall appear on the appeal record documents in place of the names of the child and the child's parents, guardian, or custodian who are parties to the action.
Source: SDC 1939, § 43.0333 as added by SL 1968, ch 164, § 18; SDCL, § 26-8-58; SL 1991, ch 217, § 108B; SDCL, § 26-8-58.1; SL 2004, ch 180, § 1.
26-7A-113. Sealing records in action involving abused or neglected child--Inspection.
In any action involving an abused or neglected child, the records and files of the court may be sealed by court order issued on the court's own motion or on the petition of any party to the action after the termination or completion of the action in all respects and after the expiration of the time for all appeals. If parental rights were terminated, the records and files of the court may not be sealed until adoption proceedings concerning the child have been completed or the court specifically orders the records and files sealed on the court's finding, based on information received by the court from the Department of Social Services, that adoption of the child is improbable. After the court records and files relating to the action concerning the abused or neglected child are sealed, inspection of the records and files may thereafter be permitted by the court only on petition by the guardian, guardian ad litem, or attorney for the child who is the subject of the action, by respondent parents whose parental rights have not been terminated or by the Department of Social Services. Before allowing inspection of sealed records and files, the court shall find that the inspection is in keeping with the best interests of the child.
Source: SDC 1939, § 43.0321 as enacted by SL 1968, ch 164, § 15; SL 1978, ch 192, § 2; SL 1989, ch 20, § 178; SL 1991, ch 217, § 109B; SDCL Supp, § 26-8-57.1.
26-7A-114. Sealing records in action involving child in need of supervision--Inspection.
In any action involving a child in need of supervision, the records and files of the court may be sealed by court order issued on the court's own motion or on the petition of any party to the action after the termination or completion of the action in all respects, after the expiration of the time for all appeals and after the unconditional release of the child from the court's jurisdiction. After the records and files are sealed, inspection of them may thereafter be permitted by the court only on petition by the state's attorney, guardian, guardian ad litem, or attorney for the child who is the subject of the action or by the respondent parents or a court services officer. Before allowing inspection of sealed records and files, the court shall find that the inspection is in keeping with the best interests of the child.
Source: SL 1991, ch 217, § 109C.
26-7A-115. Sealing records in action involving delinquent child--Inspection.
In any action involving a delinquent child, the records and files of the court may be sealed by a court order issued on the court's own motion or on the petition of the child or the child's parents. However, no such petition may be filed and considered by the court until after one year from the date of the child's unconditional release from the court's jurisdiction or the discharge of the child by the Department of Corrections, whichever date is later. Upon the filing of the petition, the court shall set a date for hearing and shall notify the state's attorney and any other party who the court believes may have relevant information about the delinquent child. The court may order sealed all of the court's records and files and the records and files in the custody or under the control of any other agency or official if at the hearing on the petition to seal the court finds:
(1) The delinquent child has not been adjudicated as a delinquent under this chapter or chapter 26-8C since the termination of the court's jurisdiction of the child or the discharge of the child by the Department of Corrections;
(2) No proceeding involving the delinquent child concerning a felony, a sexual contact offense, a misdemeanor involving moral turpitude or a petition under this chapter or chapter 26-8C is pending or is being instituted against the child; and
(3) The rehabilitation of the delinquent child has been attained to the satisfaction of the court.
Source: SL 1991, ch 217, § 109D.
26-7A-115.1. Victim of human trafficking or sexual exploitation--Expungement of delinquency record.
A victim of human trafficking may petition the court directly or through a parent, guardian, or guardian ad litem, for the expungement of a delinquency record that resulted from being a victim of human trafficking, as defined in § 22-49-1, or sexual exploitation, as defined in § 22-22-24.3. An expungement under this section vacates the underlying delinquency proceeding.
Source: SL 2018, ch 166, § 1; SL 2020, ch 89, § 4.
26-7A-116. Distribution of copies of order sealing records--Inspection of sealed records.
If the court orders the sealing of the records and files pursuant to § 26-7A-113, 26-7A-114, or 26-7A-115, copies of the sealing order shall be sent to each agency or official named in the order. Subsequent inspection of the sealed records may thereafter be permitted by the court only on petition by the child who is the subject of the record, the state's attorney, or court services officers. The court may permit inspection of the sealed records and files for use by the court in other actions or proceedings under this chapter or chapter 26-8C and for subsequent criminal proceedings for sentencing purposes. Nothing in this chapter prohibits the custodian of records or files from inspecting or accessing the custodian's records or files as may be necessary for the discharge of the custodian's official duties in the absence of an order from the court.
Source: SL 1991, ch 217, § 109E; SL 2006, ch 143, § 1.
26-7A-117. Maximum age for which committed.
A child may be committed to the Department of Corrections only until the child has attained the age of twenty-one years.
Source: SL 1992, ch 183, § 8; SL 1996, ch 172, § 14.
26-7A-118. Parent or guardian required to appear at certain hearings.
Notwithstanding any other provision of this chapter, at least one custodial parent or guardian of any child who is the subject of child in need of supervision or delinquency proceedings under this chapter or chapter 26-8B or 26-8C shall appear at any hearing, except a hearing under § 26-7A-13, authorized by this chapter or chapter 26-8B or 26-8C. This provision does not apply to parents or guardians who are not residents of South Dakota nor to any state official or state agency. The absence of the parent or guardian need not result in postponement of the scheduled hearing, if the court finds good cause to proceed in the absence. If the parent or guardian, without reasonable cause, fails to appear at the scheduled hearing, a warrant may be issued requiring the parent or guardian to be brought before the court.
Source: SL 1993, ch 202.
26-7A-120. Confidentiality of records.
Records prepared or maintained by court services officers are confidential. However, such records may be inspected by, or disclosed to, justices, judges, magistrates, and employees of the Unified Judicial System in the course of their duties and to persons specifically authorized by order of the court.
Source: SL 1994, ch 217, § 1.
26-7A-122. Court discharge of child from Department of Corrections--Restoration to parent, guardian, or custodian or change in placement--Resisting discharge.
The court committing a child to the Department of Corrections under this chapter and chapters 26-8B and 26-8C may, at any time after making the commitment and as long as the child is under the jurisdiction of the department, upon proper application and noticed hearing, order the discharge of the child from the department, order the child to be restored to the child's parents, guardian, or custodian or order the child to be placed under the guardianship of another person appointed by the court and placed in a suitable family home. At the hearing the court shall determine if the best interests of the child will be promoted by the child's discharge from the department.
The secretary of corrections may appear at the hearing and resist the application. The court shall give the secretary ten days advance notice of the application and hearing. The secretary shall have five days after receipt of the notice to inform the court if the secretary will appear and resist the application.
Source: SL 1996, ch 172, § 17.
26-7A-123. Department of Corrections to file periodic report on child in custody--Contents of report.
Within thirty days after a child is committed to the Department of Corrections under this chapter, or chapter 26-8B, or 26-8C, and every ninety days thereafter while the child remains in a correctional placement, the Department of Corrections shall file a written report with the court which committed such child. This written report shall contain the following information:
(1) The results of any assessments of the child concerning the child's emotional, mental, educational, psychological, psychiatric, medical, physical, or health status and needs; and
(2) Information regarding the placement of the child within particular programs administered by the Department of Corrections; and
(3) Progress of the child in programs administered by the Department of Corrections.
Source: SL 2000, ch 121, § 1.
26-7A-124. Judicial review of report--Court may issue show cause order against department.
Upon review of the information provided in § 26-7A-123, the court may, upon its own motion, enter an order compelling the secretary of corrections to appear and show cause why the court should not order the discharge of the child from the department, order the child to be restored to the child's parents, guardian, or custodian, order the child to be placed under the guardianship of another person appointed by the court and placed in a suitable family home, or order an amended decree of disposition pursuant to § 26-8B-6 or 26-8C-7. At the hearing, the court shall determine if the best interests of the child will be promoted by the child's discharge from the department.
Source: SL 2000, ch 121, § 2.
26-7A-125. Graduated sanctions and incentives program for responding to probation violations.
The Supreme Court shall establish rules, pursuant to § 16-3-1, to develop a graduated sanctions and incentives procedure and grid to guide court services officers in determining the appropriate response to a violation of terms or conditions of probation in juvenile cases. If the graduated sanctions program includes detention, a stay may not exceed forty-eight hours, and may not exceed twenty-four hours for children in need of supervision pursuant to § 26-8B-3. The Unified Judicial System shall collect data related to the use of sanctions, grid compliance and program outcomes, and shall include a process for reviewing sanctions that are challenged by the juvenile. The system of graduated sanctions shall be created with the following objectives:
(1) Responding to violations of probation quickly, consistently, and proportionally;
(2) Reducing the time and resources expended by the court to respond to violations; and
(3) Reducing the likelihood of a new delinquent act.
Source: SL 2015, ch 152, § 25, eff. Jan. 1, 2016.
26-7A-126. Law enforcement treatment as juvenile cited violation--Procedure--Report to state's attorney.
The following allegations of delinquency and children in need of supervision shall be treated as juvenile cited violations by law enforcement:
(1) Petty theft in the second degree pursuant to § 22-30A-17.3;
(2) Intentional damage to property, four hundred dollars or less, pursuant to § 22-34-1;
(3) Purchase, possession, or consumption of alcoholic beverage by person under twenty-one years pursuant to § 35-9-2 in accordance with subdivision 26-8B-2(5); and
(4) Truancy pursuant to subdivision 26-8B-2(1).
The issuing officer shall notify the child and the child's parent, guardian, or custodian that a hearing on the citation for a cited violation shall be held before a judicial circuit court judge within ten days of issuance of the citation or on the next available court date and be treated as a confidential juvenile matter. The hearing shall be held pursuant to § 26-7A-36 and the case records shall be treated as confidential consistent with the provisions of §§ 26-7A-114, 26-7A-115, 26-7A-116, 26-7A-120, and 26-7A-27. A cited violation is not an adjudication or a child in need of supervision or delinquency proceeding. In lieu of a citation, pursuant to subdivision 26-7A-126(4), a school official may file a report with the state's attorney. A report may also be filed with the state's attorney in lieu of a citation if the conduct occurs in conjunction with another offense that is not subject to the juvenile cited violation process.
Source: SL 2015, ch 152, § 37, eff. Jan. 1, 2016; SL 2017, ch 115, § 3, eff. Mar. 13, 2017.
26-7A-127. Action by state's attorney for juvenile cited violation.
If a state's attorney is informed that a citation or report has been issued for a juvenile cited violation, the state's attorney may take any action permitted pursuant to § 26-7A-10, except that a state's attorney may only file a petition pursuant to subdivision 26-7A-10(5) if:
(1) The child is cited or a report is filed pursuant to subdivision 26-7A-126(1), (2), or (4); or
(2) The child is cited pursuant to subdivision 26-7A-126(3), and has two or more prior judgments for the same violation.
If the state's attorney intends to proceed on a petition for a violation of the provisions in § 26-7A-126 pursuant to subdivision (1) or (2) in this section, the provisions of § 26-7A-11.1 apply.
Source: SL 2015, ch 152, § 38, eff. Jan. 1, 2016; SL 2017, ch 115, § 4, eff. Mar. 13, 2017.
26-7A-128. Admission or denial of alleged juvenile cited violation--Procedure.
If the state's attorney elects to proceed on the citation pursuant to subdivision 26-7A-10(3), the child shall be asked for an admission or denial of the alleged violation. If the child admits to the violation, the court shall accept the admission and enter a judgment pursuant to § 26-7A-129. If the child denies committing the violation, the case may be tried according to procedure adopted by the presiding judge of each judicial circuit and approved by the Supreme Court, but a jury trial may not be granted.
If the child fails to appear in court at the time set in the citation or set by subsequent postponement, the court may either issue a summons to appear and set a new date for hearing to show cause, the court may consider that failure to appear constitutes an admission to the allegations contained in the complaint and may accordingly enter a judgment for payment, or may grant permission to the state's attorney to file a petition pursuant to subdivision 26-7A-10(5).
If the child fails to comply with the terms of the judgment, the court may issue a summons to appear and show cause, or assess against the child's parents or guardians the amount of the citation and any restitution owed pursuant to § 26-7A-129 or may grant permission to the state's attorney to file a petition pursuant to subdivision 26-7A-10(5).
Source: SL 2015, ch 152, § 39, eff. Jan. 1, 2016; SL 2016, ch 146, § 2, eff. Mar. 25, 2016; SL 2017, ch 115, § 5, eff. Mar. 13, 2017.
26-7A-129. Judgment on juvenile cited violation.
If a child is found to be in violation of the citation, the court shall enter a judgment against the child for one or more of the following:
(1) Require the child to complete a court-approved juvenile diversion program or informal adjustment administered by a court services officer;
(2) A fine and court costs not to exceed one hundred dollars;
(3) Community service;
(4) Restitution as defined in subdivision 23A-28-2(4) and as determined appropriate by the court; or
(5) Suspension or revocation of the child's driving privilege if the judgment is entered on a violation pursuant to subdivision 26-7A-126(3).
The court may set a hearing to review compliance with the judgment. If a child is unable to pay a fine, court costs, or restitution as ordered by the court, any party may request that the court order community service in lieu of the monetary judgment. At no time may a court order a child to probation or detention upon entry of a judgment on a cited violation. A judgment on a cited violation shall be a confidential matter pursuant to subsection 15-15A-7(p) but the state's attorney may maintain a nonpublic record of the judgment for purposes of determining eligibility under § 26-7A-127.
Source: SL 2015, ch 152, § 40, eff. Jan. 1, 2016; SL 2016, ch 146, § 5, eff. Mar. 25, 2016; SL 2017, ch 115, § 6, eff. Mar. 13, 2017.
STATE OF SOUTH DAKOTA IN CIRCUIT COURT
SS.
COUNTY OF __________ ________ JUDICIAL CIRCUIT
THE PEOPLE OF THE STATE OF SOUTH
(Case No. JUV. ________)
DAKOTA IN THE INTERESTS OF
_____________________________________ NOTIFICATION OF TAKING
MINOR CHILD(REN), AND CONCERNING TEMPORARY CUSTODY
____________________________________ OF CHILD(REN)
PARENTS, GUARDIAN OR CUSTODIAN.
Source: SL 1991, ch 217, § 175.
STATE OF SOUTH DAKOTA IN CIRCUIT COURT
SS.
COUNTY OF __________ ________ JUDICIAL CIRCUIT
IN THE INTEREST OF (Case No. JUV. ________)
_____________________________________
MINOR CHILD(REN) STATEMENT OF
STATE'S ATTORNEY RE
PRELIMINARY INVESTIGATION
Source: SL 1991, ch 217, § 176.
STATE OF SOUTH DAKOTA IN CIRCUIT COURT
SS.
COUNTY OF __________ ________ JUDICIAL CIRCUIT
THE PEOPLE OF THE STATE OF SOUTH (Case No. JUV. ________)
DAKOTA, EX REL. SOUTH DAKOTA
DEPARTMENT OF SOCIAL SERVICES,
IN THE INTERESTS OF PETITION
_____________________________________ [Alleged Abused Or
MINOR CHILD(REN), AND CONCERNING Neglected Child(ren)]
____________________________________
RESPONDENTS.
.
Source: SL 1991, ch 217, § 177.
Source: SL 1991, ch 217, § 177.
BY THE COURT:
(SEAL)
ATTEST: _____________________________________
JUDGE
____________ JUDICIAL CIRCUIT COURT
CLERK OF COURTS STATE OF SOUTH DAKOTA
__________ COUNTY, SOUTH DAKOTA
Source: SL 1991, ch 217, § 178.
BY THE COURT:
(SEAL)
ATTEST: __________________________________
JUDGE
___________________________________ _________ JUDICIAL CIRCUIT COURT
CLERK OF COURTS STATE OF SOUTH DAKOTA
__________ COUNTY, SOUTH DAKOTA
Source: SL 1991, ch 217, § 178.
CHAPTER 26-8A
PROTECTION OF CHILDREN FROM ABUSE OR NEGLECT
26-8A-1 Purpose of chapter.
26-8A-2 Abused or neglected child.
26-8A-3 Persons required to report child abuse or neglected child--Intentional failure as misdemeanor.
26-8A-4 Additional persons to report death resulting from abuse or neglect--Intentional failure as misdemeanor.
26-8A-5 Application of terms.
26-8A-6 Report of abuse or neglect by hospital personnel--Failure as misdemeanor--Written policy required.
26-8A-7 Child abuse or neglect reports by school personnel--Failure as misdemeanor--Written policy required.
26-8A-8 Oral report of abuse or neglect--To whom made--Response report.
26-8A-9 Investigation of oral report--Other action permitted--Appointment of attorney--Compensation.
26-8A-10 Report to social services--Content.
26-8A-10.1 Notice to child's parents of determination of abuse or neglect--Contents--Confidentiality.
26-8A-10.2 Exception to notice requirement.
26-8A-11 Request to amend or remove record--Administrative hearing--Decision.
26-8A-11.1 Request for a hearing to release name of complainant in unsubstantiated investigation.
26-8A-12 Operation of central registry for abuse and neglect--Adoption of rules.
26-8A-12.1 Abuse and neglect screening of head start employees and adoptive or foster parents.
26-8A-12.2 Abuse and neglect screening required of certain current and potential employees and volunteers--Written consent required.
26-8A-12.3 Central registry check of kinship, foster care, adoption, and child welfare agency employment applicants.
26-8A-12.4 Central registry check of prospective foster or adoptive parents at request of governmental social service agency for another state.
26-8A-13 Confidentiality of abuse or neglect information--Violation as misdemeanor--Release to certain parties.
26-8A-13.1 Certain child protection records to be provided to the court, court services, state's attorney, or agencies--Discovery--Fees.
26-8A-13.2 Consent of possible caretaker required for central registry screenings.
26-8A-13.3 Allegations relating to military parent or guardian--Notice to defense department family advocacy program.
26-8A-14 Immunity from liability.
26-8A-15 Communications not privileged in child abuse or neglect cases.
26-8A-16 Photographs, videotapes, or other images, and medical examinations taken without consent--Disposition.
26-8A-17 Child protection teams.
26-8A-18 Appointment of counsel--Compensation--Assistance.
26-8A-19 Abused and neglected child defense fund--Distribution to counties--Pro rata.
26-8A-20 Appointment of representative of child's best interest--Duties.
26-8A-21 Reasonable efforts to eliminate need for removal--Reasonable efforts to return child to home--Determining adequacy of efforts.
26-8A-21.1 Exceptions to § 26-8A-21.
26-8A-21.2 Permanency hearing required if child is not to be returned to parents--Court to determine placement--Final dispositional hearing.
26-8A-22 Final decree of disposition--Permitted disposition when parental rights not terminated--Annual permanency hearing for child in foster care.
26-8A-22.1 Court to require instruction in parenting as part of sentence in certain convictions.
26-8A-23 Court-ordered medical, psychological or psychiatric treatment of spiritually-treated child.
26-8A-24 Periodic review hearings of foster care status--Petition for judicial action.
26-8A-25 Criteria for determining continued placement of child separate from home.
26-8A-26 Termination of parental rights--Return of child to parents or continued placement--Annual permanency hearing for child in foster care.
26-8A-26.1 Additional reasons for termination of parental rights.
26-8A-27 Final decree terminating parental rights of one or both parents--Child support arrearages--Custody of child.
26-8A-28 Notice of order or final decree--Service--Appeal.
26-8A-29 Continuing jurisdiction over abused or neglected child.
26-8A-29.1 Request for hearing by relative denied adoptive placement--Time limits--Intervention.
26-8A-30 Testimony of child by closed circuit television--Hearing to determine necessity.
26-8A-31 Persons allowed to be present during closed circuit television testimony--Display of defendant's image in room where child testifies--Recesses for defendant consultation--Court communication--Child testimony outside jury presence.
26-8A-31.1 Rights of child witness.
26-8A-32 Due regard to be afforded Indian Child Welfare Act.
26-8A-33 Proceeding involving child covered by Indian Child Welfare Act.
26-8A-34 Alcohol or drug testing as condition of child placement or return.
26-8A-35 Toxicology test of newborn infant for exposure to controlled substance--Report of positive result.
26-8A-36 Immunity from liability for administering or not administering toxicology test.
26-8A-37 Health care practitioner defined.
26-8A-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 protection of children from abuse or neglect. Adjudication of a child as an abused or neglected child is an adjudication of the status or condition of the child who is the subject of the proceedings and is not necessarily an adjudication against or in favor of any particular parent, guardian, or custodian of the child.
Source: SL 1991, ch 217, § 110.
26-8A-2. Abused or neglected child.
In this chapter and chapter 26-7A, the term, abused or neglected child, means a child:
(1) Whose parent, guardian, or custodian has abandoned the child or has subjected the child to mistreatment or abuse;
(2) Who lacks proper parental care through the actions or omissions of the child's parent, guardian, or custodian;
(3) Whose environment is injurious to the child's welfare;
(4) Whose parent, guardian, or custodian fails or refuses to provide proper or necessary subsistence, supervision, education, medical care, or any other care necessary for the child's health, guidance, or well-being;
(5) Who is homeless, without proper care, or not domiciled with the child's parent, guardian, or custodian through no fault of the child's parent, guardian, or custodian;
(6) Who is threatened with substantial harm;
(7) Who has sustained emotional harm or mental injury as indicated by an injury to the child's intellectual or psychological capacity evidenced by an observable and substantial impairment in the child's ability to function within the child's normal range of performance and behavior, with due regard to the child's culture;
(8) Who is subject to sexual abuse, sexual molestation, or sexual exploitation as defined in § 22-22-24.3, by the child's parent, guardian, custodian, or any other person responsible for the child's care;
(9) Who was subject to prenatal exposure to abusive use of alcohol, marijuana, or any controlled drug or substance not lawfully prescribed by a practitioner as authorized by chapters 22-42 and 34-20B; or
(10) Whose parent, guardian, or custodian knowingly exposes the child to an environment that is being used for the manufacture, use, or distribution of methamphetamines or any other unlawfully manufactured controlled drug or substance.
Source: SDC 1939, § 43.0301 (12) as enacted by SL 1968, ch 164, § 1; SL 1984, ch 192, § 1; SL 1990, ch 170, § 4; SL 1991, ch 217, § 111B; SDCL Supp, § 26-8-6; SL 1998, ch 204, § 2; SL 2004, ch 181, § 1; SL 2005, ch 141, § 1; SL 2008, ch 137, § 1; SL 2020, ch 89, § 5.
26-8A-3. Persons required to report child abuse or neglected child--Intentional failure as misdemeanor.
Any physician, dentist, doctor of osteopathy, chiropractor, optometrist, emergency medical technician, paramedic, mental health professional or counselor, podiatrist, psychologist, religious healing practitioner, social worker, hospital intern or resident, parole or court services officer, law enforcement officer, teacher, school counselor, school official, nurse, licensed or registered child welfare provider, employee or volunteer of a domestic abuse shelter, employee or volunteer of a child advocacy organization or child welfare service provider, chemical dependency counselor, coroner, dental hygienist, or any safety-sensitive position as defined in § 3-6C-1, who has reasonable cause to suspect that a child under the age of eighteen has been abused or neglected as defined in § 26-8A-2 shall report that information in accordance with §§ 26-8A-6, 26-8A-7, and 26-8A-8. Any person who intentionally fails to make the required report is guilty of a Class 1 misdemeanor. Any person who knows or has reason to suspect that a child has been abused or neglected as defined in § 26-8A-2 may report that information as provided in § 26-8A-8.
Source: SL 1964, ch 90, §§ 1, 5; SDCL § 26-10-13; SL 1973, ch 172, § 1; SL 1975, ch 179, § 2; SL 1976, ch 167; SL 1982, ch 201; SL 1984, ch 192, § 2; SL 1985, ch 215, § 1; SL 1986, ch 223; SL 1991, ch 217, § 112B; SDCL Supp, § 26-10-10; SL 1993, ch 203; SL 2000, ch 122, § 1; SL 2012, ch 146, § 1; SL 2016, ch 143, § 1; SL 2021, ch 118, § 1.
26-8A-4. Additional persons to report death resulting from abuse or neglect--Intentional failure as misdemeanor.
In addition to the report required under § 26-8A-3, any person who has reasonable cause to suspect that a child has died as a result of child abuse or neglect as defined in § 26-8A-2 shall report that information to the medical examiner or coroner. Upon receipt of the report, the medical examiner or coroner shall cause an investigation to be made and submit written findings to the state's attorney and the Department of Social Services. Any person required to report under this section who knowingly and intentionally fails to make a report is guilty of a Class 1 misdemeanor.
Source: SL 1984, ch 192, § 4; SL 1991, ch 217, § 113B; SDCL, § 26-10-10.1.
26-8A-5. Application of terms.
As used in §§ 26-8A-3 and 26-8A-7, the terms "teacher," "school counselor," "school official," "school administrator," "school principal," and "school superintendent" apply to any person substantially performing the respective duties of any such position in a public or private school, whether accredited or unaccredited, and to any person providing instruction pursuant to § 13-27-3.
Source: SL 1989, ch 232; SL 1991, ch 217, § 114B; SDCL Supp, § 26-10-10.2.
26-8A-6. Report of abuse or neglect by hospital personnel--Failure as misdemeanor--Written policy required.
Any person who has contact with a child through the performance of services as a member of a staff of a hospital or similar institution shall immediately notify the person in charge of the institution or his designee of suspected abuse or neglect. The person in charge shall report the information in accordance with the provisions of § 26-8A-8. Any person required by this section to report shall also promptly submit to the state's attorney complete copies of all medical examination, treatment, and hospital records regarding the child. Any person who knowingly and intentionally fails to make a required report and to submit copies of records is guilty of a Class 1 misdemeanor. Each hospital or similar institution shall have a written policy on reporting of child abuse and neglect and submission of copies of medical examination, treatment, and hospital records to the state's attorney.
Source: SL 1964, ch 90, §§ 1, 5; SDCL, § 26-10-13; SL 1984, ch 192, § 5; SL 1985, ch 215, § 2; SL 1991, ch 217, § 115B; SDCL Supp, § 26-10-11.
26-8A-7. Child abuse or neglect reports by school personnel--Failure as misdemeanor--Written policy required.
Any person who has contact with a child through the performance of services in any public or private school, whether accredited or unaccredited, as a teacher, school nurse, school counselor, school official or administrator, or any person providing services pursuant to § 13-27-3 shall notify the school principal or school superintendent or designee of suspected abuse or neglect. The school principal or superintendent shall report the information in accordance with the provisions of § 26-8A-8. Any person who knowingly and intentionally fails to make a required report is guilty of a Class 1 misdemeanor. Each school district shall have a written policy on reporting of child abuse and neglect.
Source: SL 1984, ch 192, § 6; SL 1985, ch 215, § 3; SL 1991, ch 217, § 116B; SDCL Supp, § 26-10-11.1.
26-8A-8. Oral report of abuse or neglect--To whom made--Response report.
The reports required by §§ 26-8A-3, 26-8A-6, and 26-8A-7 and by other sections of this chapter shall be made orally and immediately by telephone or otherwise to the state's attorney of the county in which the child resides or is present, to the Department of Social Services or to law enforcement officers. The mandatory reporter who witnessed the disclosure or evidence of the abuse or neglect must be available to answer questions when the initial report is made pursuant to this section. The state's attorney or law enforcement officers, upon receiving a report, shall immediately notify the Department of Social Services. Any person receiving a report of suspected child abuse or child neglect shall keep the report confidential as provided in § 26-8A-13, except as otherwise provided in chapter 26-7A or this chapter.
The person receiving a report alleging child abuse or neglect shall ask whether or not the reporting party desires a response report. If requested by the reporting person, the Department of Social Services or the concerned law enforcement officer shall issue within thirty days, a written acknowledgment of receipt of the report and a response stating whether or not the report will be investigated.
Source: SL 1964, ch 90, § 2; SL 1973, ch 172, § 2; SL 1975, ch 179, § 3; SL 1980, ch 192, § 1; SL 1984, ch 192, § 3; SL 1991, ch 217, § 117B; SDCL § 26-10-12; SL 2015, ch 151, § 1.
26-8A-9. Investigation of oral report--Other action permitted--Appointment of attorney--Compensation.
Upon receipt of a report pursuant to § 26-8A-8, the Department of Social Services or law enforcement officers shall investigate. Investigating personnel may personally interview a child out of the presence of the child's parents, guardian, or custodian without advance notice or consent. The investigation does not prohibit any other lawful action. If the investigation and report indicate that child abuse or neglect has occurred, the state's attorney shall take appropriate action immediately. The court may appoint an attorney, guardian ad litem, or special advocate to assist in representing the best interests of the child. Any such appointment shall occur in the manner the county in which the action is being conducted has chosen to provide indigent counsel under § 23A-40-7. Compensation and expense allowances for the child's attorney, guardian ad litem, or special advocate shall be determined and paid according to § 26-7A-31.
Source: SL 1973, ch 172, § 3; SL 1975, ch 179, § 4; SL 1980, ch 192, § 2; SL 1984, ch 192, § 7; SL 1985, ch 214, § 1; SL 1991, ch 217, § 118B; SDCL Supp, § 26-10-12.1; SL 2010, ch 139, § 2.
26-8A-10. Report to social services--Content.
A report made pursuant to § 26-8A-8 to the Department of Social Services shall include the name, address, date and place of birth of the child, the name and address of the child's parents, guardian, custodian, or responsible persons, the date of the report, and the suspected or proven instances of child abuse or neglect as defined in § 26-8A-2. The Department of Social Services shall be the central registry for such information.
Source: SL 1973, ch 172, § 4; SL 1975, ch 179, § 5; SL 1980, ch 192, § 3; SL 1980, ch 193, § 2; SL 1984, ch 192, § 8; SL 1991, ch 217, § 119B; SDCL, § 26-10-12.2.
26-8A-10.1. Notice to child's parents of determination of abuse or neglect--Contents--Confidentiality.
If an investigation by the Department of Social Services determines that abuse or neglect has occurred, the department shall make reasonable efforts to inform each of the child's parents of the determination with due regard given to the rights of the subject of the report pursuant to § 26-8A-11. The information shall only include identification of the provisions of § 26-8A-2 which constituted the basis for the determination that abuse or neglect occurred. This provision does not limit the department in providing services to a parent who is the subject of the report. A notice of the report shall be sent, by certified mail, to any parent who is not the subject of the report at the parent's last known address. The information shall be maintained confidential by the parent pursuant to § 26-8A-13.
Source: SL 2006, ch 145, § 1.
26-8A-10.2. Exception to notice requirement.
The provisions of § 26-8A-10.1 do not apply if the department has good cause to believe that the provisions of the information will be seriously detrimental to the best interests of the child.
Source: SL 2006, ch 145, § 2.
26-8A-11. Request to amend or remove record--Administrative hearing--Decision.
Within thirty days after the Department of Social Services notifies any person that he or she will be placed on the central registry for child abuse and neglect based upon a substantiated investigation, the person may request an administrative hearing. The administrative hearing is limited to determining whether the record should be amended or removed on the grounds that it is inaccurate. The request shall be made in writing and directed to the person designated by the department in the notice. However, if there has been a court finding of child abuse or neglect, the record's accuracy is conclusively presumed and the person has no right to an administrative hearing. In the hearing, the burden of proving the accuracy of the record is on the department. The hearing examiner may order the amendment or removal of the record. The decision of the hearing examiner shall be made in writing within ninety days after the date of receipt of the request for a hearing and shall state the reasons upon which it is based. Decisions of the department under this section are administrative decisions subject to judicial review under chapter 1-26. In any case where there has been no substantiated report of child abuse and neglect, the department may not maintain a record or other information of unsubstantiated child abuse and neglect for longer than three years if there has been no further report within that three-year period.
Source: SL 1991, ch 217, § 120; SL 1996, ch 178, § 2; SL 1997, ch 159, § 1; SL 2007, ch 164, § 1.
26-8A-11.1. Request for a hearing to release name of complainant in unsubstantiated investigation.
Within thirty days after the notice of the determination of an unsubstantiated investigation by the Department of Social Services, the person who is the subject of the investigation may request an administrative hearing to determine whether the report was made with malice and without reasonable foundation and whether the name of the complainant should be released to the subject of the investigation. Within twenty days of receiving the request, an administrative hearing officer shall notify the complainant by mail that a request to release the complainant's name has been made and set a time and date for a hearing. The complainant shall be afforded the opportunity to be heard prior to any determination by the hearing officer to release the name. The complainant may appear at the hearing in person or through counsel or may submit written objections to the request in lieu of appearance. Any written objections or other information that may reveal the name of the complainant shall be sealed and available only to the administrative hearing officer. The administrative hearing officer shall determine within ninety days of the final date of the hearing whether the report was made maliciously and without reasonable foundation and whether release of the complainant's name would be likely to endanger the complainant's life or safety. The administrative hearing officer shall issue such a finding in a written report. The report may not disclose the name of the complainant or other identifying information. If the administrative hearing officer determines that the report was made with malice and without reasonable foundation and that release of the complainant's name is not likely to endanger the complainant's life or safety, the officer shall order the department to release the name of the complainant thirty days after issuing such finding. If the administrative hearing officer determines that the report was not made with malice or that the report was made with reasonable foundation or that release of the complainant's name is likely to endanger the life or safety of the complainant, the name of the complainant may not be disclosed. Decisions of the department under this section are administrative decisions subject to review under chapter 1-26. If a decision of the department under this section is appealed under chapter 1-26, the identity of the complainant shall remain confidential until a final court order requiring the release of the complainant's name.
Source: SL 1996, ch 178, § 3.
26-8A-12. Operation of central registry for abuse and neglect--Adoption of rules.
The secretary of social services may adopt reasonable and necessary rules for the operation of the central registry for abuse and neglect, including the following:
(1) Filing of reports;
(2) Procedures for provision of notice to the subject of a report;
(3) Amendment and expunction;
(4) Release of information from the registry;
(5) Statistical information; and
(6) Provisions for the keeping and maintenance of records and the type of information placed into the central registry.
However, the secretary may not adopt any rule which would permit the removal from the central registry for abuse and neglect of any person who has been convicted of any violation of chapter 22-22, chapter 22-24A, § 22-22A-3, or § 26-10-1, if the victim of such crime was a child.
Source: SL 1991, ch 217, § 120A; SL 1992, ch 187; SL 2007, ch 167, § 3.
26-8A-12.1. Abuse and neglect screening of head start employees and adoptive or foster parents.
Upon receipt of a list of names of current or potential employees from a head start program director or the name of any person being considered as an adoptive or foster parent from a certified social worker eligible to engage in private independent practice as defined in § 36-26-17, the secretary of the Department of Social Services shall compare the list to the central registry for abuse and neglect and report any findings to the requesting program director or social worker.
Source: SL 1997, ch 162, § 1; SL 2002, ch 116, § 4.
26-8A-12.2. Abuse and neglect screening required of certain current and potential employees and volunteers--Written consent required.
Upon receipt of names of current or potential employees or volunteers from the Juvenile Division of the Department of Corrections, any adolescent treatment program operated by the Department of Human Services or the Department of Social Services, any entity recognized as administering a CASA program as provided in § 16-2-51, any nationally accredited child advocacy center recognized by the Department of Social Services, or a court considering appointment of a guardian ad litem for a child in a proceeding pursuant to chapter 26-8A, the Department of Social Services shall compare the names to the central registry for abuse and neglect and report any findings to the requesting program director, to the Bureau of Human Resources and Administration human resource manager, child advocacy center, or to the court. Any potential employee or volunteer under this section shall give written consent before completion of the abuse and neglect screening. Failure to submit to abuse and neglect screening disqualifies an applicant from employment or appointment.
Source: SL 2001, ch 140, § 1; SL 2008, ch 138, § 1; SL 2011, ch 1 (Ex. Ord. 11-1), § 134, eff. Apr. 12, 2011; SL 2012, ch 23, § 95; SL 2016, ch 144, § 1; SL 2024, ch 1 (Ex. Ord. 24-1), § 35, eff. Apr. 8, 2024.
26-8A-12.3. Central registry check of kinship, foster care, adoption, and child welfare agency employment applicants.
Upon the receipt of a written request from a licensed child welfare agency or a private child welfare agency whose licensure has been waived pursuant to § 26-6-9, the Department of Social Services shall conduct a check of the central registry for child abuse and neglect for kinship, foster care, adoption, or employment applicants and shall provide the results to the requesting agency. Further, upon written request from an agency that provides child welfare services or child placement services for a federally recognized tribe, the department shall conduct a check of the central registry for child abuse and neglect for kinship, foster care, or adoption applicants and shall provide the results to the requesting tribal agency. Before the department conducts any check of the central registry for child abuse and neglect pursuant to this section, the requesting agency shall provide to the department a consent signed by the applicant for kinship, foster care, adoption, or employment.
Source: SL 2007, ch 165, § 2; SL 2016, ch 144, § 2.
26-8A-12.4. Central registry check of prospective foster or adoptive parents at request of governmental social service agency for another state.
Upon receipt of a written request from a governmental social service agency with child protection responsibilities for another state and a consent signed by the applicant, the Department of Social Services shall conduct a check of the central registry for child abuse and neglect regarding a prospective foster or adoptive parent in the requesting state or any adult living in the parent's home and shall provide the results to the requesting agency.
Source: SL 2007, ch 162, § 2.
26-8A-13. Confidentiality of abuse or neglect information--Violation as misdemeanor--Release to certain parties.
All investigative case records and files relating to reports of child abuse or neglect are confidential, and no disclosure of any such records, files, or other information may be made except as authorized in chapter 26-7A or this chapter. Any person who knowingly violates the confidential nature of the records, files, or information is guilty of a Class 1 misdemeanor. The Department of Social Services may release records, files, or other information to the following parties upon receipt of a request showing that it is necessary for the parties to have such information in the performance of official functions relating to child abuse or neglect:
(1) The attorney general, the state's attorneys, law enforcement agencies, protective services workers, and judges of the courts investigating reports of known or suspected child abuse or neglect;
(2) The attorney or guardian ad litem of the child who is the subject of the information;
(3) Public officials or their authorized representatives who require the information in connection with the discharge of official duties;
(4) Institutions and agencies that have legal responsibility or authorization to care for, treat, or supervise a child who is the subject of the information or report;
(5) A parent or guardian of the child who is the subject of the information or report;
(6) A foster parent, kinship provider, or prospective adoptive parent who is or may be caring for a child in the custody of the Department of Social Services who is the subject of the information or report;
(7) A state, regional, or national registry of child abuse and neglect cases and courts of record of other states;
(8) A validly appointed and registered child protection team under § 26-8A-17;
(9) A physician caring for a child who is suspected or found to be abused or neglected;
(10) State hearing examiners and any person, or the legal representative of any person, who is the subject of the report for purposes directly related to review under § 26-8A-11; and
(11) A person eligible to submit an adoptive home study report under § 25-6-9.1 or 26-4-15. However, the information may only be released for the purpose of screening applicants.
Information received by an authorized receiving party shall be held confidential by the receiving party. However, the court may order the release of the information or any portion of it necessary for determination of an issue before the court.
Upon written request, the Department of Social Services shall release findings or information regarding the abuse or neglect of a child that resulted in a fatality or near fatality of the child unless the release of the findings or information would jeopardize a pending criminal investigation or proceeding. The findings or information to be released shall relate to the acts of child abuse or neglect that caused the fatality or near fatality of the child. However, the identity of the child may never be released. For the purpose of this chapter, near fatality means an act that, as certified by a physician, placed the child in serious or critical condition.
Source: SL 1975, ch 179, § 6; SL 1980, ch 193, § 3; SL 1991, ch 217, § 121B; SDCL § 26-10-12.3; SL 1992, ch 188; SL 1993, ch 204; SL 1994, ch 205; SL 1995, ch 147, § 2; SL 1998, ch 160, § 1; SL 1999, ch 134, § 1; SL 2007, ch 165, § 1; SL 2009, ch 136, § 1; SL 2021, ch 119, § 1.
26-8A-13.1. Certain child protection records to be provided to the court, court services, state's attorney, or agencies--Discovery--Fees.
Notwithstanding the provisions of § 26-8A-13, or any other statute to the contrary, in any case that a child is under the jurisdiction of the court pursuant to chapter 26-8B or 26-8C, upon a request for information, the Department of Social Services shall, with due regard to any federal laws or regulations in the following instances:
(1) Conduct a child abuse and neglect central registry check and provide the results to the court, court services, or the state's attorney to determine the appropriateness of returning a child to the parents or placing the child with another caretaker at any time during the pendency of the proceedings;
(2) For a child committed to the Department of Corrections, conduct a child abuse and neglect central registry check and provide the results to the Department of Corrections for purposes of determining the appropriateness of returning a child to the parents or placing the child with another caretaker; and
(3) For a child committed to the Department of Corrections, release copies of, or the equivalent to, the child's: request for services history summary, initial family assessments, court reports, and family service agreements to the Department of Corrections for treatment planning purposes.
Upon receipt of an order of the court, the Department of Social Services shall make its child protection services file related to the child or the child's parents and siblings available to the court, court services, or the state's attorney with the exception of information protected by the Health Information Portability and Accountability Act of 1996, as amended to January 1, 2019, the Family Educational Rights and Privacy Act, as amended to January 1, 2019, and the federal rules governing the confidentiality of alcohol and drug abuse patient records pursuant to 42 C.F.R. Part 2, as amended to January 1, 2019. Under no circumstances may the court order the release of information pertaining to pending abuse or neglect investigations.
The information released under this section is discoverable to the parties under the provisions of chapter 26-7A, but is otherwise confidential. However, the court, court services, or the Department of Corrections may release the information in their possession or any portion necessary to institutions and agencies that have legal responsibility or authorization to care for, treat, or supervise a child. The attorneys for the child and respondents may review the records with the child and the respondents but may not copy or release copies of the records. A pro se litigant is entitled to review the records but may not copy or release copies of the records.
The Department of Social Services shall impose reasonable fees for reproduction of its records released under this section. The Department of Social Services shall promulgate rules pursuant to chapter 1-26 for any fee imposed for records reproduction.
Source: SL 2007, ch 166, § 1; SL 2019, ch 127, § 5.
26-8A-13.2. Consent of possible caretaker required for central registry screenings.
For central registry screenings allowed under the provisions of § 26-8A-13.1, the Department of Social Services may not complete the requested screening until the court, court services, the Department of Corrections, or the state's attorney provides to the department a consent signed by the person being considered as a possible caretaker for the child.
Source: SL 2007, ch 166, § 2.
26-8A-13.3. Allegations relating to military parent or guardian--Notice to defense department family advocacy program.
Upon receipt of a report pursuant to § 26-8A-10, the Department of Social Services shall make an effort to determine the military status of the parent or guardian whose child is subject to the report of child abuse or neglect. Notwithstanding the provisions of § 26-8A-13 or any other provision of law, if the department determines that the parent or guardian is in the military, the department shall notify a United States Department of Defense family advocacy program of the allegations that relate to the military parent or guardian.
Source: SL 2019, ch 123, § 1.
26-8A-14. Immunity from liability.
Any person or party participating in good faith in the making of a report or the submitting of copies of medical examination, treatment, or hospitalization records pursuant to §§ 26-8A-3 to 26-8A-8, inclusive, or pursuant to any other provisions of this chapter, is immune from any liability, civil or criminal, that might otherwise be incurred or imposed, and has the same immunity for participation in any judicial proceeding resulting from the report. Immunity also extends in the same manner to persons requesting the taking of photographs and X rays pursuant to § 26-8A-16, to persons taking the photographs and X rays, to child protection teams established by the secretary of social services, to public officials or employees involved in the investigation and treatment of child abuse or neglect or making a temporary placement of the child pursuant to this chapter, or to any person who in good faith cooperates with a child protection team or the Department of Social Services in investigation, placement, or a treatment plan. The provisions of this section or any other section granting or allowing the grant of immunity do not extend to any person alleged to have committed an act or acts of child abuse or neglect.
Source: SL 1964, ch 90, § 3; SL 1980, ch 193, § 4; SL 1984, ch 192, § 11; SL 1991, ch 217, § 122B; SDCL, § 26-10-14.
26-8A-15. Communications not privileged in child abuse or neglect cases.
The privilege of confidentiality set forth in §§ 19-2-3, 19-19-503, 19-19-504, 19-19-508.1, and 36-26-30 may not be claimed in any judicial proceeding involving an alleged abused or neglected child or resulting from the giving or causing the giving of a report concerning abuse or neglect of a child pursuant to §§ 26-8A-3 to 26-8A-8, inclusive.
Source: SL 1964, ch 90, § 4; SL 1977, ch 209; SL 1989, ch 233; SL 1991, ch 217, § 123B; SDCL Supp, § 26-10-15.
26-8A-16. Photographs, videotapes, or other images, and medical examinations taken without consent--Disposition.
Any person who receives a report under § 26-8A-3 may take or cause to be taken color photographs, videotapes, or other images of the areas of trauma visible on a child who is the subject of the report and may require a radiological or other medical examination or testing of the child without the consent of the child's parents, guardian, or custodian. All photographs, videotapes, or other images taken pursuant to this section shall be taken by a law enforcement official, the Department of Social Services, or a person authorized by a law enforcement official or the department. All photographs, videotapes, other images, X rays, and test results, or copies of them, shall be sent to the appropriate law enforcement agency or state's attorney or to the Department of Social Services. These photographs, videotapes, and other images need not be made a part of the child's medical or hospital records. Any photograph, videotapes, or other image in the possession of the Department of Social Services shall be destroyed by the Department of Social Services if no criminal prosecution or civil action is initiated within three years of the date that such material was received by the Department of Social Services.
Source: SL 1984, ch 192, § 10; SL 1991, ch 217, § 124B; SDCL, § 26-10-18; SL 1999, ch 135, § 1.
26-8A-17. Child protection teams.
The secretary of social services may appoint child protection teams to assist in the prevention and treatment of child abuse and neglect. A child protection team may include licensed or certified medical and health professionals, the court services officer recommended by the presiding judge of a judicial circuit in which the team is to operate, the secretaries of social services and health or their designees, a representative of a mental health center, a representative of a public school district in which the team is to operate, an attorney, a foster parent, and one or more representatives of the public. The Department of Social Services shall maintain a record of the membership of each child protection team.
Source: SL 1980, ch 193, § 1; SL 1989, ch 234; SL 1991, ch 217, § 125B; SDCL Supp, § 26-10-16.
26-8A-18. Appointment of counsel--Compensation--Assistance.
Notwithstanding the provisions of §§ 26-7A-31 and 26-8A-9, the court shall appoint an attorney for any child alleged to be abused or neglected in any judicial proceeding. The court shall appoint an attorney in the manner the county in which the action is being conducted has chosen to provide indigent counsel under § 23A-40-7. The attorney for the child shall represent the child's best interests and may not be the attorney for any other party involved in the judicial proceedings. The court may designate other persons, including a guardian ad litem or special advocate, who may or may not be attorneys licensed to practice law, to assist the attorney of the child in the performance of the attorney's duties. Compensation and expense allowances for the child's attorney shall be determined and paid according to § 26-7A-31.
Source: SL 1984, ch 192, § 9; SL 1991, ch 217, § 126B; SDCL § 26-10-17; SL 2010, ch 139, § 3.
26-8A-19. Abused and neglected child defense fund--Distribution to counties--Pro rata.
There is hereby created in the office of the state treasurer an abused and neglected child defense fund. All moneys in the abused and neglected child defense fund shall be annually distributed by the state treasurer to the counties on a pro rata basis. The state treasurer shall, within sixty days of the end of the fiscal year, determine and verify from receipts and expenditure records the total expenditures by all counties in the state for the representation of abused and neglected children. He shall then establish a percentage ratio between moneys collected in the fund for the past fiscal year and the total expenditures by counties for the representation of abused and neglected children. That percentage ratio shall then be applied to each county's expenditure for the representation of abused and neglected children to determine its respective payment from the fund.
Source: SL 1991, ch 197, §§ 2, 3.
26-8A-20. Appointment of representative of child's best interest--Duties.
If a child is an apparent or alleged abused or neglected child, the court may appoint a special advocate to represent the best interests of the child and to assist the child's attorney. If a child has been adjudicated an abused or neglected child and is removed from the child's home with the child's parents, guardian, or custodian, the court shall appoint a special advocate if available, and may appoint a guardian ad litem when determined necessary by the court, to represent the best interests of the child and to assist the child's attorney. The guardian ad litem or special advocate is an officer of the court for the purpose of representing the child's best interests. The guardian ad litem or special advocate shall receive all reports concerning the child and may cause the case to be reviewed by the court pursuant to § 26-8A-24.
Source: SL 1985, ch 214, § 2; SL 1991, ch 217, § 128B; SDCL Supp, § 26-8-35.3; SL 2009, ch 137, § 1; SL 2022, ch 83, § 1.
26-8A-21. Reasonable efforts to eliminate need for removal--Reasonable efforts to return child to home--Determining adequacy of efforts.
The Department of Social Services shall make reasonable efforts prior to the removal of an alleged or adjudicated abused or neglected child from the home of the child's parents, guardian, or custodian to prevent or eliminate the need for removal of the child. If the child has been removed from the home and has been placed in temporary custody of the department, the department shall make reasonable efforts to make it possible for the child to return to the home of the child's parents, guardian, or custodian. If the child is to be or has been removed from the home, the court shall first make a judicial determination that removal of the child from the home is or was necessary because continued presence of the child in the home would be contrary to the welfare of the child and that reasonable efforts by the department to avoid removal of the child from the home have been made. If the child has been removed from the home and has not been returned to the home, the court shall first make a judicial determination that reasonable efforts have been made by the department to return the child to the home and that the child cannot be returned to the home because it would be contrary to the welfare of the child.
Reasonable efforts to prevent the necessity for removal of a child from the home of the child's parents, guardian, or custodian and reasonable efforts to return the child to the home mean provision by the department of any assistance or services that:
(1) Are appropriate for the child's parents, guardian, custodian, or any other caretaker family of the child existing at the time of removal or possible return of the child, including instruction on parenting;
(2) Are available pursuant to the comprehensive plan of preventive services of the department;
(3) Could be made available without undue financial burden on the department; or
(4) Would have a significant likelihood of protecting the child from substantial danger to the child's physical health or from severe emotional damage while enabling the child to remain in the home or to be returned to the home.
In determining the adequacy of reasonable efforts, the court shall consider the assistance, services, and efforts of the department. The court shall also consider the good faith efforts or the lack of good faith efforts made by the child's parents, guardian, custodian, or other caretaker family to cooperate with the department and to effectively utilize the assistance or services for the benefit and welfare of the child.
Source: SL 1989, ch 231, § 3; SL 1991, ch 217, § 130B; SDCL Supp, § 26-8-35.5; SL 1998, ch 161, § 1; SL 1998, ch 162, § 1.
26-8A-21.1. Exceptions to § 26-8A-21.
Nothing in § 26-8A-21 requires reunification of a child with a parent who:
(1) Committed a crime defined in § 22-16-4, 22-16-7, 22-16-15, 22-16-20, 22-22-1, 22-22-24.3, 22-22A-2, 22-22A-3, 26-10-1, or subdivision 22-19-1(5), or committed conduct described by any of those statutes that violated the law or ordinance of another jurisdiction having elements similar to an offense described by any of those statutes;
(2) Aided or abetted, attempted, conspired, or solicited to commit a crime defined in § 22-16-4, 22-16-7, 22-16-15, or 22-16-20 or the law or ordinance of another jurisdiction having elements similar to an offense described by any of those statutes;
(3) Committed a crime defined in § 22-18-1.1, 22-22-7, or subdivision 22-23-2(2) against the child or another child of such parent, or committed conduct described by those sections that violated the law or ordinance of another jurisdiction having elements similar to the offense described by those sections;
(4) Has been determined by a court by clear and convincing evidence to have subjected the child or another child to torture, sexual abuse, abandonment for at least six months, chronic physical, mental, or emotional injury, or chronic neglect if the neglect was a serious threat to the safety of the child or another child;
(5) Is incarcerated and is unavailable to care for the child during a significant period of the child's minority, considering the child's age and the child's need for care by an adult;
(6) Has had parental rights to another child involuntarily terminated by a prior legal proceeding;
(7) Has a documented history of abuse and neglect associated with chronic alcohol or drug abuse;
(8) Has exposed the child to or demonstrated an inability to protect the child from substantial harm or the risk of substantial harm, and the child or another child has been removed from the parent's custody because the removed child was adjudicated abused and neglected by a court on at least one previous occasion;
(9) Has exposed the child to or demonstrated an inability to protect the child from substantial harm or the risk of substantial harm, the child has been removed from the parent's custody on two separate occasions, and the Department of Social Services offered or provided family services on each of the two separate occasions the child was removed;
(10) Has exposed the child to or demonstrated an inability to protect the child from substantial harm or risk of harm resulting from a crime, act, or omission as specified in subdivision (1), (2), or (3) of this section; or
(11) Is required to register as a sex offender pursuant to chapter 22-24B.
Source: SL 1998, ch 161, § 2; SL 1999, ch 136, § 1; SL 2001, ch 141, § 1; SL 2007, ch 167, § 1; SL 2012, ch 147, § 1.
26-8A-21.2. Permanency hearing required if child is not to be returned to parents--Court to determine placement--Final dispositional hearing.
If the court has determined that reasonable efforts to return an adjudicated abused or neglected child to the home of the parent, guardian, or custodian are not appropriate, a permanency hearing shall be held within thirty days after the determination. At the permanency hearing, the court shall determine if:
(1) The child should be placed for adoption. If the court determines that the child should be placed for adoption, the state shall notify the parties of its intent to seek the termination of parental rights if notice has not already been provided;
(2) The child should be referred for legal guardianship;
(3) The child should be placed permanently with a fit and willing relative; or
(4) Only in the case of a child who is sixteen years of age or older, a compelling reason is documented with the court that none of the permanent plans listed in this section would be in the best interest of the child, and the child should be placed in another planned permanent living arrangement. At each permanency hearing for a child placed in another planned permanent living arrangement, the court shall ask the child about the desired permanency outcome for the child and make a judicial determination stating the reasons that another planned permanent living arrangement is the best permanency plan for the child.
The court may immediately proceed with a final dispositional hearing if proper notice of the hearing has been given.
Source: SL 1999, ch 137, § 1; SL 2005, ch 142, § 1; SL 2016, ch 145, § 1.
26-8A-22. Final decree of disposition--Permitted disposition when parental rights not terminated--Annual permanency hearing for child in foster care.
On completion of the dispositional phase of the proceeding, the court shall enter a final decree of disposition. If the final decree of disposition does not terminate parental rights, the decree shall include one or more of the following provisions which the court finds appropriate as the least restrictive alternative available:
(1) The court may place the child in the custody of one or both of the child's parents, a guardian, a relative of the child or another suitable person, or a party or agency, with or without protective supervision, or the Department of Social Services, subject to the conditions and the length of time that the court deems necessary or appropriate. If the court returns custody to the child's parent, guardian, or custodian, such return of custody may be with supervision during which the court may require the parent, guardian, custodian, and any other adult residing in the home, to cooperate with home visits by the department and may require the parent, guardian, custodian, and any other adult residing in the home, to submit, at the request of the department, to tests for alcohol, marijuana, or any controlled drug or substance. If the adjudication of abuse or neglect was related to the use of alcohol, marijuana, or any controlled drug or substance, the parent, guardian, or custodian, and any other adult residing in the home, may be required, in those areas where such testing is available, to submit to regular tests for alcohol, marijuana, or any controlled drug or substance. If a positive test for alcohol, marijuana, or any controlled drug or substance is obtained, or the person fails to submit to the test as required, the department may immediately remove the child from the physical custody of the parent, guardian, custodian, or any other adult residing in the home whose test was positive or who failed to submit to the test, without prior court order subject to a review hearing, which may be telephonic, within forty-eight hours excluding Saturdays, Sundays, and court holidays. As used in this section, any controlled drug or substance means a controlled drug or substance which was not lawfully prescribed by a practitioner as authorized by chapters 22-42 and 34-20B;
(2) The court after determining that a compelling reason exists to place the child who is sixteen years of age or older in another planned permanent living arrangement rather than with a relative or with a legal guardian other than the department may place the child in the custody of the department or a child placement agency, with or without guardianship of the child, until the child attains the age of majority or until an earlier date or event as determined by the court;
(3) The court may order that the child be examined or treated by a physician or by a qualified mental health professional or that the child receive other special care and may place the child in a suitable facility for such purposes under conditions that the court deems necessary or appropriate. On completion of the examination, treatment, or hospitalization and on a full report to the court, the court shall conduct a supplemental dispositional hearing or hearings and shall make disposition of the child as otherwise provided in this section or, if the evidence shows need, the court may consider termination of parental rights as an appropriate possible alternative in keeping with the best interests and welfare of the child.
If disposition of the child under this section involves the removal from or nonreturn of the child to the home of the child's parents, guardian, or custodian and placement of the child in the custody of the department for placement in foster care, the court shall include in the decree a written judicial determination that continuation of the child's placement in the home of the child's parents, guardian, or custodian would be contrary to the welfare of the child and that reasonable efforts were made by the department to prevent or eliminate the need for removal of the child from the home. In no case may a child remain in foster care for a period in excess of twelve months from the time the child entered foster care without the court holding a permanency hearing and making a dispositional decree. The court shall review the child's permanency status and make a dispositional decree every twelve months thereafter as long as the child continues in the custody of the department. The court shall determine whether the state has made reasonable efforts to finalize the permanency plan that is in effect. That determination shall be included in the dispositional decree.
Source: SDC 1939, § 43.0310; SL 1968, ch 164, § 8; SL 1979, ch 172; SL 1989, ch 231, § 1; SL 1991, ch 217, § 131B; SDCL Supp, § 26-8-35; SL 1999, ch 137, § 2; SL 2001, ch 142, § 1; SL 2007, ch 4, § 13; SL 2016, ch 145, § 2.
26-8A-22.1. Court to require instruction in parenting as part of sentence in certain convictions.
If any person convicted of contributory abuse or contributory neglect is the child's parent, guardian, or custodian, the court shall include as part of the sentence, or conditions required as part of the suspended execution or imposition of such sentence, that the person receive instruction on parenting approved or provided by the Department of Social Services.
Source: SL 1998, ch 162, § 2.
26-8A-23. Court-ordered medical, psychological or psychiatric treatment of spiritually-treated child.
If a child has been or is under treatment for physical, mental, or emotional illness solely by a spiritual means, the court may, as provided under § 26-8A-22, order that medical, psychological, or psychiatric treatment and hospitalization be provided for the child.
Source: SDCL, § 26-10-10 as added by SL 1975, ch 179, § 2; SL 1990, ch 170, § 5; SL 1991, ch 217, § 132B; SDCL Supp, § 26-10-1.1.
26-8A-24. Periodic review hearings of foster care status--Petition for judicial action.
If a child has been adjudicated to be an abused or neglected child, parental rights have not been terminated and the court places custody of the child in the Department of Social Services, the court shall conduct a review hearing of the foster care status every six months. The hearing shall be conducted in the same manner as a dispositional hearing. If the department at any time finds that further court action is necessary to clarify the child's legal status or, for any other reason, to protect the interests of the child, the Department of Social Services may require the state's attorney to petition the court for a review hearing.
Source: SDCL, § 26-8-35 as added by SL 1979, ch 172; SL 1981, ch 203, § 1; SL 1989, ch 231, § 6; SL 1991, ch 217, § 133B; SDCL Supp, § 26-8-35.1; SL 1992, ch 183, § 11; SL 2001, ch 142, § 2.
26-8A-25. Criteria for determining continued placement of child separate from home.
In conducting the review hearing required by § 26-8A-24 the court may continue placement of the child separate from the home of the child's parents, guardian, or custodian upon a written judicial determination that return of the child to the home would be contrary to the welfare of the child and that reasonable efforts have been made by the Department of Social Services to make it possible for the child to return to the home. In making this determination, the court shall consider the following criteria:
(1) The goals of the foster care placement and the appropriateness of foster care;
(2) The assistance and services which have been offered to reunite the child with the child's parents, guardian, or custodian and the good faith efforts, or their lack, and ability of the child's parents, guardian, or custodian to cooperate with the department and to effectively utilize the assistance and services for the benefit and welfare of the child; and
(3) If the return of the child to the home of the child's parents, guardian, or custodian is not likely, the reasonable efforts of the department that have been made or should be made to provide for other methods of care in keeping with the best interests of the child.
Source: SL 1989, ch 231, § 2; SL 1991, ch 217, § 134B; SDCL, § 26-8-35.4.
26-8A-26. Termination of parental rights--Return of child to parents or continued placement--Annual permanency hearing for child in foster care.
If an adjudicated, abused, or neglected child whose parental rights have not been terminated has been in the custody of the Department of Social Services and it appears at a dispositional or review hearing that all reasonable efforts have been made to rehabilitate the family, that the conditions which led to the removal of the child still exist, and there is little likelihood that those conditions will be remedied so the child can be returned to the custody of the child's parents, the court shall affirmatively find that good cause exists for termination of the parental rights of the child's parents and the court shall enter an order terminating parental rights. If the court does not find at the hearing, which shall be conducted in the same manner as a dispositional hearing, that good cause exists for termination of parental rights, the court may make further disposition of the child as follows:
(1) Return custody of the child to the child's parents, guardian, or custodian, with or without supervision during which the court may require the parent, guardian, custodian, and any other adult residing in the home, to cooperate with home visits by the department and may require the parent, guardian, custodian, and any other adult residing in the home, to submit, at the request of the department, to tests for alcohol, marijuana, or any controlled drug or substance. If the adjudication of abuse or neglect was related to the use of alcohol, marijuana, or any controlled drug or substance, the parent, guardian, or custodian, and any other adult residing in the home, may be required, in those areas where such testing is available, to submit to regular tests for alcohol, marijuana, or any controlled drug or substance. If a positive test for alcohol, marijuana, or any controlled drug or substance is obtained, or if the person fails to submit to the test as required, the department may immediately remove the child from the physical custody of the parent, guardian, custodian, or any other adult residing in the home whose test was positive or who failed to submit to the test, without prior court order subject to a review hearing, which may be telephonic, within forty-eight hours excluding Saturdays, Sundays, and court holidays. As used herein, any controlled drug or substance means a controlled drug or substance which was not lawfully prescribed by a practitioner as authorized by chapters 22-42 and 34-20B;
(2) Continue foster care placement of the child for a specified period of time, and, if the child is sixteen years of age or older, direct the department to determine the services needed to assist the child to make the transition from foster care to independent living and, if appropriate, provide a plan for independent living for the child;
(3) Place the child who is sixteen years of age or older in the custody of the department or a child placement agency, with or without guardianship of the child, in another planned permanent living arrangement following a determination that a compelling reason exists that the placement is more appropriate than adoption or with a relative or with a legal guardian other than the department and under a court-approved plan that determines visitation rights of the child's parents, guardian, or custodian. Under this subdivision, the court may retain jurisdiction of the action and proceedings for future consideration of termination of parental rights if termination of parental rights is the least restrictive alternative available in keeping with the best interests of the child.
In no case may a child remain in foster care for a period in excess of twelve months from the time the child entered foster care without the court holding a permanency hearing and making a dispositional decree setting forth one of the above options. The court shall review the child's permanency status and make a dispositional decree every twelve months thereafter as long as the child continues in the custody of the department. The court shall determine whether the state has made reasonable efforts to finalize the permanency plan that is in effect. That determination shall be included in the dispositional decree.
Source: SL 1981, ch 203, § 2; SL 1991, ch 217, § 135B; SDCL § 26-8-35.2; SL 1992, ch 183, §§ 12, 20; SL 1997, ch 160, § 1; SL 1998, ch 161, § 3; SL 1999, ch 137, § 3; SL 2001, ch 142, § 3; SL 2007, ch 4, § 14; SL 2016, ch 145, § 3.
26-8A-26.1. Additional reasons for termination of parental rights.
In addition to the provisions of § 26-8A-26, the court may find that good cause exists for termination of parental rights of a parent who:
(1) Committed a crime defined in § 22-16-4, 22-16-7, 22-16-15, 22-16-20, 22-22-1, 22-22-24.3, 22-22A-2, 22-22A-3, 26-10-1, or subdivision 22-19-1(5), or committed conduct described by any of those statutes that violated the law or ordinance of another jurisdiction having elements similar to an offense described by any of those statutes;
(2) Aided or abetted, attempted, conspired, or solicited to commit a crime defined in § 22-16-4, 22-16-7, 22-16-15, or 22-16-20 or the law or ordinance of another jurisdiction having elements similar to an offense described by any of those statutes;
(3) Committed a crime defined in § 22-18-1.1, 22-22-7, or subdivision 22-23-2(2) against the child or another child of such parent, or committed conduct described by those sections that violated the law or ordinance of another jurisdiction having elements similar to the offense described by those sections;
(4) Has been determined by a court by clear and convincing evidence to have subjected the child or another child to torture, sexual abuse, abandonment for at least six months, chronic physical, mental, or emotional injury, or chronic neglect if the neglect was a serious threat to the safety of the child or another child;
(5) Is incarcerated and is unavailable to care for the child during a significant period of the child's minority, considering the child's age and the child's need for care by an adult;
(6) Has had parental rights to another child involuntarily terminated by a prior legal proceeding;
(7) Has a documented history of abuse and neglect associated with chronic alcohol or drug abuse;
(8) Has exposed the child to or demonstrated an inability to protect the child from substantial harm or the risk of substantial harm, and the child or another child has been removed from the parent's custody because the removed child was adjudicated abused and neglected by a court on at least one previous occasion;
(9) Has exposed the child to or demonstrated an inability to protect the child from substantial harm or the risk of substantial harm, the child has been removed from the parent's custody on two separate occasions, and the Department of Social Services offered or provided family services on each of the two separate occasions the child was removed;
(10) Has exposed the child to or demonstrated an inability to protect the child from substantial harm or risk of harm resulting from a crime, act, or omission as specified in subdivision (1), (2), or (3) of this section; or
(11) Is required to register as a sex offender pursuant to chapter 22-24B.
Source: SL 1998, ch 161, § 4; SL 1999, ch 136, § 2; SL 2001, ch 141, § 2; SL 2007, ch 167, § 2; SL 2012, ch 147, § 2.
26-8A-27. Final decree terminating parental rights of one or both parents--Child support arrearages--Custody of child.
On completion of a final dispositional hearing regarding a child adjudicated to be abused or neglected, the court may enter a final decree of disposition terminating all parental rights of one or both parents of the child if the court finds, by clear and convincing evidence, that the least restrictive alternative available commensurate with the best interests of the child with due regard for the rights of the parents, the public and the state so requires. The court may enter a decree terminating parental rights if the court finds, by clear and convincing evidence, that the parents have abandoned the child for at least six months and during this period the parents have not manifested to the child or to the physical custodian or caretaker of the child a firm intention to resume physical custody of the child and to make suitable arrangements for the care of the child. If the court decides to terminate parental rights, any existing child support arrearages shall be addressed by the court in the order terminating those parental rights.
Upon the entry of the final decree of disposition terminating the parental rights of both parents or of the surviving parent, the court shall vest the Department of Social Services with the custody and guardianship of the person of the child for the purpose of placing the child for adoption and authorizing appropriate personnel of the department to consent to adoption of the child without need for any notice or consent of any parent of the child. The final decree terminating parental rights is final and unconditional. The natural parents retain no post-termination rights or privileges including post-termination visitation except for any final visitation allowed by the department.
Upon the entry of a final decree of disposition terminating the parental rights of one parent, the court may leave the child in the custody of the remaining parent and end the proceedings.
Source: SDC 1939, § 43.0310; SL 1968, ch 164, § 8; SL 1991, ch 217, § 136B; SDCL § 26-8-36; SL 1997, ch 161, § 1; SL 2013, ch 119, § 21.
26-8A-28. Notice of order or final decree--Service--Appeal.
Notice of entry of order of adjudication or final decree of disposition issued by the court in any action involving an abused or neglected child shall be served on the child's attorney and the child's guardian ad litem or special advocate, if any, and on all respondent parents and other respondent parties in any manner authorized by the rules of civil procedure. The notice of entry may be served by publication in the same manner as service of the summons in the action as provided in § 26-7A-48. If the notice of entry is served by publication, the service is completed five days after the date of publication. The time for appeal commences on the day following the date of completed service of the notice of entry regardless of the manner in which the notice of entry is served.
Source: SL 1991, ch 217, § 138; SL 2002, ch 131, § 1; SL 2003, ch 150, § 1.
26-8A-29. Continuing jurisdiction over abused or neglected child.
In any action involving the termination of parental rights of both parents or any surviving parent, the court has continuing jurisdiction of the action and of the abused or neglected child for purposes of review of status of the child until the adoption of the child is fully completed. The Department of Social Services or any other party having custody and guardianship of the child pending adoption may petition the court to review the status of the child at any time before the adoption of the child is completed. The court may issue any orders or decrees necessary to protect the child, to preserve the child's welfare and to facilitate adoption of the child by the court or another court of competent jurisdiction without delay. The continuing jurisdiction of the court according to this section does not prevent the acquisition of jurisdiction of the child by another court for adoption proceedings according to law.
Source: SL 1991, ch 217, § 139.
26-8A-29.1. Request for hearing by relative denied adoptive placement--Time limits--Intervention.
Except under circumstances where placement was with another relative of the child, any relative who has been denied adoptive placement by the Department of Social Services may request a hearing to determine if the placement was an abuse of discretion. The request shall be filed with the circuit court having jurisdiction pursuant to § 26-8A-29 and shall be filed within thirty days of written notification from the department by regular mail to the relative's last known address. The hearing shall be held within thirty days of the filing of the request for hearing and may be continued for not more than thirty days upon good cause shown. The relative shall be granted limited intervention only for the purpose of the placement review hearing.
No intervention may be allowed in a proceeding involving an apparent, alleged, or adjudicated abused or neglected child, including an adoption or guardianship proceeding for a child placed in the custody of the Department of Social Services pursuant to § 26-8A-27, except as provided by this chapter and under the Indian Child Welfare Act, (25 U.S.C. §§ 1901 to 1963, inclusive), as amended to January 1, 2019.
Source: SL 2005, ch 140, § 3; SL 2019, ch 127, § 6.
26-8A-30. Testimony of child by closed circuit television--Hearing to determine necessity.
In any proceeding in which a child under the age of sixteen is describing any act of sexual contact or rape performed with or on the child by another, any act of physical abuse or neglect of the child by another, any act of physical abuse or neglect of another child, any act of human trafficking of the child by another, or any act constituting a crime of violence as defined in § 22-1-2 committed against the child or another child, the court or any party may move to allow that the testimony of the child be taken in a room other than the courtroom and televised at the same time to the courtroom by closed circuit television equipment. Prior to allowing the child to testify under this section, the court shall hold a hearing outside the presence of the jury and make a finding on the record that testimony by the child in the courtroom will cause the child to suffer more than de minimis emotional distress and that testifying under the provisions of this section is necessary to protect the welfare of the child.
Source: SL 1993, ch 205, § 1; SL 2022, ch 84, § 1.
26-8A-31. Persons allowed to be present during closed circuit television testimony--Display of defendant's image in room where child testifies--Recesses for defendant consultation--Court communication--Child testimony outside jury presence.
At the taking of testimony pursuant to § 26-8A-30, the public must be excluded from the room in which the child is testifying. The court shall determine those persons permitted to be physically present. The court, in its discretion, may permit in the room a person whose presence would contribute to the well-being of the child or the reduction of apprehension of the child during the testimony. Attorneys for the parties may not be excluded.
If the court makes a specific finding, outside the presence of the jury, that the presence of the defendant, or in a civil case, the presence of the respondent, in the same room as the child, will cause substantial emotional distress to the child and that such distress would impair the ability of the child to communicate, upon such finding the court may exclude the defendant from the room in which the child is testifying. However, if the defendant is excluded, the testimony of the child shall be by two-way, closed-circuit television such that the testimony of the child is televised in the courtroom and simultaneously thereto, a monitor in the room in which the child is testifying displays a view of the courtroom which view shall include the defendant. The right to have the defendant's image televised in the room in which the child is testifying is a right of the defendant which the defendant may waive. If the defendant is excluded from the room in which the child is testifying, the court must provide for instantaneous communication between the defendant and defense counsel and grant reasonable court recesses during the testimony for consultation between the defendant and defense counsel. The court may communicate by audio system with attorneys outside of the courtroom.
If, on the motion of the prosecuting attorney and outside the presence of the jury, the court makes a specific finding that the child will suffer substantial emotional distress that will impair the ability of the child to communicate due to the presence of the jury, the court may exclude the jury from the room in which the child is testifying. The testimony of the child must be televised at the same time to the courtroom by closed circuit television equipment.
Source: SL 1993, ch 205, § 2; SL 2023, ch 85, § 1.
26-8A-31.1. Rights of child witness.
In any proceeding in which a child under the age of sixteen is describing any act of sexual contact or rape performed with or on the child by another, any act of physical abuse or neglect of the child by another, any act of physical abuse or neglect of another child, any act of human trafficking of the child by another, or any act constituting a crime of violence as defined in § 22-1-2 committed against the child or another child, the court may, on its own motion or by motion of an attorney in the proceeding, provide any of the following accommodations to the child:
(1) To be addressed, asked questions, and read the oath or affirmation to testify truthfully in an age-appropriate manner;
(2) To be free of nuisance or harassing tactics in the proceeding;
(3) To have a person who would contribute to the well-being of the child present, clearly visible, and in close proximity, if the person is not a witness in the proceeding;
(4) To have sufficient breaks in the proceedings to allow for the comfort of the child; or
(5) To have a certified therapeutic dog as defined in § 23A-24-10, an item used to provide psychological comfort, or both, present in the room with the child.
Source: SL 2023, ch 85, § 2.
26-8A-32. Due regard to be afforded Indian Child Welfare Act.
Due regard shall be afforded to the Indian Child Welfare Act (25 U.S.C. §§ 1901-1963), if that Act is applicable.
Source: SL 2004, ch 2, § 10, eff. Mar. 3, 2004; SL 2019, ch 127, § 7.
26-8A-33. Proceeding involving child covered by Indian Child Welfare Act.
In any abuse or neglect proceeding involving a child covered by the Indian Child Welfare Act (25 U.S.C. §§ 1901-1963), as amended to January 1, 2005, the tribe may appear by counsel or by a representative of the tribe designated by the tribe to intervene on behalf of the tribe. When the tribe appears as a party by a representative of the tribe, the name of the representative and a statement of authorization for that individual or agency to appear as the tribe must be submitted to the court in the form of a tribal resolution or other document evidencing an official act of the tribe.
Source: SL 2005, ch 296 (Supreme Court Rule 05-10), effective Feb. 25, 2005.
26-8A-34. Alcohol or drug testing as condition of child placement or return.
If the court finds the apparent, alleged, or adjudicated abuse or neglect of a child was related to the use of alcohol, marijuana, or any controlled drug or substance, the placement or return of the child may be subject to the condition, if the court so orders, that a parent, guardian, custodian, or any other adult residing in the home submit to tests for alcohol, marijuana, or any controlled drug or substance prior to or during the placement or return of the child. If a parent, guardian, custodian, or any other adult, who resides in the home and has been ordered by the court to submit to testing for alcohol, marijuana, or any controlled drug or substance, tests positive for alcohol, marijuana, or any controlled drug or substance, or fails to submit to the test as required, the Department of Social Services may immediately remove the child from the physical custody of the parent, guardian, or custodian, without prior court order, subject to a review hearing, which may be telephonic, within forty-eight hours excluding Saturdays, Sundays, and court holidays. As used in this section, any controlled drug or substance means a controlled drug or substance which was not lawfully prescribed by a practitioner as authorized by chapters 22-42 and 34-20B.
Source: SL 2008, ch 6, § 2.
26-8A-35. Toxicology test of newborn infant for exposure to controlled substance--Report of positive result.
If a health care practitioner has reason to believe based on a medical assessment of a mother or a newborn infant that the mother used a controlled substance for a nonmedical purpose during the pregnancy, the health care practitioner may administer, with or without the consent of the newborn infant's parent or guardian, a toxicology test to the newborn infant under the health care practitioner's care to determine whether there is evidence of prenatal exposure to a controlled substance. If the test results are positive, the health care practitioner shall report the results pursuant to § 26-8A-8.
Source: SL 2018, ch 167, § 1.
26-8A-36. Immunity from liability for administering or not administering toxicology test.
A health care practitioner or any other medical personnel administering a toxicology test to determine the presence of a controlled substance in a newborn infant at birth or during the first twenty-eight days after birth and the employer of the person administering the test are immune from civil or criminal liability arising from administration of the test if the health care practitioner ordering the test believes in good faith that the test is permitted under this section and if the test is administered in accordance with an established protocol and reasonable medical practice.
If a health care practitioner or any other medical personnel determines in good faith not to administer a toxicology test under this section, the person making the determination and the person's employer are immune from civil or criminal liability arising from not administering the test.
Source: SL 2018, ch 167, § 2.
26-8A-37. Health care practitioner defined.
For purposes of §§ 26-8A-35 and 26-8A-36, a health care practitioner is a person licensed, accredited, or certified to perform specified health services consistent with state law.
Source: SL 2018, ch 167, § 3.
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.
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.
CHAPTER 26-8D
JUVENILE JUSTICE--PUBLIC SAFETY IMPROVEMENT
26-8D-1 Definitions.
26-8D-2 Fiscal incentive program for diversion opportunities--Requirements--Allotment of moneys--Report.
26-8D-3 Treatment for juvenile system involved youth.
26-8D-4 Collection and report of treatment program referral and completion data.
26-8D-5 Evaluation and recommendations to improve outcomes for Native American children in juvenile justice system.
26-8D-6 Report of evaluation and recommendations.
26-8D-7 Juvenile Justice Oversight Council established.
26-8D-8 Council--Purpose--Members.
26-8D-9 Council--Sunset--Meetings--Tasks.
26-8D-10 Community response teams--Purpose--Members--Confidentiality of records.
26-8D-11 Promulgation of rules regarding community response teams.
26-8D-12 Report of nonidentifying aggregate data for jurisdictions where community response team established.
26-8D-13 Recipients of community services--Liability.
26-8D-14 Findings of fact and conclusions of law justifying need for extended detention.
26-8D-15 Unified Judicial System semiannual report to oversight council--Contents.
26-8D-16 Unified Judicial System semiannual report to oversight council on probation.
26-8D-17 Placement in group care facility--Performance-based reimbursement--Juvenile corrections facilities to operate programs to achieve treatment goals and release to aftercare.
26-8D-18 Placement in residential treatment center or intensive residential treatment center--Performance-based reimbursement.
26-8D-19 Department of Corrections semiannual report to oversight council--Contents.
26-8D-20 Department of Corrections semiannual report to oversight council on aftercare.
26-8D-21 Juvenile justice detention cost-sharing fund created.
26-8D-22 Participating and nonparticipating counties.
26-8D-23 Reimbursement of participating counties.
26-8D-24 Amount of reimbursement.
26-8D-25 26-8D-25. Repealed by SL 2019, ch 125, § 1, eff. June 28, 2019.
26-8D-1. Definitions.
Terms used in this chapter mean:
(1) "Community response team" or "team," a support team tasked with finding viable community resources to help rehabilitate children alleged to be delinquent and children alleged to be in need of supervision in community-based settings who are at risk for commitment to the Department of Corrections;
(2) "Juvenile cited violation," designated delinquency or children in need of supervision violation handled by law enforcement with the uniform traffic ticket pursuant to § 23-1A-2;
(3) "Juvenile Justice Oversight Council," the council established by § 26-8D-7;
(4) "Quality assured," monitored to determine the extent to which individuals delivering treatment to juveniles are administering that treatment consistently and as designed;
(5) "Recidivism," for the Department of Corrections for the purposes of this chapter, within one year, two years, or three years of discharge from the custody of the Department of Corrections, a juvenile commitment or conviction in adult court for a felony resulting in a sentence to the Department of Corrections. For the Unified Judicial System for the purposes of this chapter, the term means being adjudicated delinquent while on probation or adjudicated delinquent or convicted of a felony in adult court within one year, two years, or three years after discharge from juvenile probation;
(6) "Risk factors," characteristics and behaviors that, when addressed or changed, affect a child's risk for committing delinquent acts. The term includes prior and current offense history, antisocial behavior, antisocial personality, attitude and thinking about delinquent activity, family dysfunction, low levels of education or engagement in school, poor use of leisure time and recreation, and substance abuse;
(7) "Specialized transition services," independent living; foster care; respite; crisis stabilization; short-term assessment; a residential setting intended to transition the juvenile from a residential treatment center, intensive residential treatment center, or more restrictive group care or juvenile corrections facility; or other transitional setting authorized by the secretary of the Department of Corrections;
(8) "Treatment," when used in a juvenile justice context, targeted interventions that utilize evidence-based practices to focus on juvenile risk factors, to improve mental health, and to reduce the likelihood of delinquent behavior; and
(9) "Validated risk and needs assessment," a tool scientifically proven to identify factors for delinquency and predict a child's risk to reoffend.
Source: SL 2015, ch 152, § 1; SL 2023, ch 87, § 1.
26-8D-2. Fiscal incentive program for diversion opportunities--Requirements--Allotment of moneys--Report.
The Department of Corrections shall provide a fiscal incentive program to incentivize county use of diversion opportunities. To receive funding from the fiscal incentive program, a county must submit an application to the department before September first of each year.
The application must include data on the number of children annually referred by the county to a diversion program and the number of children referred that successfully complete a diversion program. For each child referred to diversion, the application must specify the type of program or type of diversion the child was referred to, the name and location of each diversion provider, and whether the child completed the diversion program.
Each qualifying county shall receive an allotment of funds based on the number of children referred by the county that complete a court-approved diversion program at a rate of seven hundred and fifty dollars per child. If the number of children completing a diversion program statewide results in an amount that exceeds the allotted funds, the allotted amount for each county must be prorated. The department shall transfer payments to counties on or about November first each year.
The department shall report data collected from participating counties semiannually to the Juvenile Justice Oversight Council.
Source: SL 2015, ch 152, § 5; SL 2024, ch 100, § 1.
26-8D-3. Treatment for juvenile system involved youth.
The Department of Social Services may provide for and implement treatment for juvenile system involved youth. The Department of Social Services, in coordination with the Department of Corrections and Unified Judicial System, shall identify community-based treatment to be made available to juveniles with justice system involvement based on the needs of the youth. The Unified Judicial System and the Department of Corrections shall annually provide aggregated risk factor data to the Department of Social Services. Any treatment identified for implementation shall be quality assured and shown through research or documented evidence to reduce recidivism and other juvenile risk factors.
In cooperation with the Department of Corrections and the Unified Judicial System, the Department of Social Services shall establish a juvenile treatment referral process incorporating a risk and needs assessment tool for use by the Unified Judicial System and Department of Corrections, and supplemental mental health and substance abuse screening tools.
The Department of Corrections and Unified Judicial System shall use a validated risk and needs assessment, and either a mental health or substance abuse assessment, or both, if the risk and needs assessment indicates a mental health or substance abuse issue, to guide referrals to interventions identified under this section, consistent with the process established by the Department of Social Services.
Source: SL 2015, ch 152, § 6.
26-8D-4. Collection and report of treatment program referral and completion data.
The Department of Social Services shall collect data, in the aggregate and by provider, on the number of juveniles referred to treatment, the number and percent of juveniles completing treatment and not completing treatment for juveniles receiving treatment paid for by the Department of Social Services pursuant to this chapter. The Department of Social Services shall report this information semiannually to the oversight council and regularly review the information, data, and other performance measures with the Unified Judicial System and Department of Corrections.
The Department of Social Services shall provide the Unified Judicial System and Department of Corrections with treatment program referral and completion data in the aggregate, by provider, and on the individual level.
Source: SL 2015, ch 152, § 7, eff. Jan. 1, 2016.
26-8D-5. Evaluation and recommendations to improve outcomes for Native American children in juvenile justice system.
The Department of Tribal Relations, in coordination with necessary state agencies, treatment providers, law enforcement, and stakeholders, shall evaluate and make recommendations to the oversight council to improve outcomes for Native American children in the juvenile justice system. Options for consideration may include sharing of treatment resources, information sharing about children under probation supervision, and joint supervision.
Source: SL 2015, ch 152, § 8.
26-8D-6. Report of evaluation and recommendations.
The Department of Tribal Relations shall report to the oversight council by December 31, 2016, the progress of the evaluation required by § 26-8D-5. The Department of Tribal Relations shall submit its final recommendations to the oversight council, the Governor, the Chief Justice, and the Legislature by July 1, 2017.
Source: SL 2015, ch 152, § 9.
26-8D-7. Juvenile Justice Oversight Council established.
There is hereby established a Juvenile Justice Oversight Council responsible for monitoring and reporting performance and outcome measures related to the provisions set forth in this chapter.
Source: SL 2015, ch 152, § 11.
26-8D-8. Council--Purpose--Members.
The Juvenile Justice Oversight Council is created for the purpose of providing an independent review of the state juvenile justice system and providing recommendations to the Legislature, Governor, and Chief Justice. The oversight council consists of the following nineteen members:
(1) The Governor shall appoint the following six members:
(a) A representative from the Department of Corrections;
(b) A representative from the Department of Social Services;
(c) A representative from a youth care provider;
(d) A representative from the Department of Tribal Relations;
(e) A member of law enforcement; and
(f) One at-large member;
(2) The Chief Justice shall appoint the following six members:
(a) A juvenile justice defense attorney;
(b) Two circuit court judges;
(c) A juvenile court services officer;
(d) A representative from the State Court Administrator's Office; and
(e) One at-large member;
(3) The president pro-tempore of the Senate shall appoint the following two Senators:
(a) A member of the Senate Judiciary Committee; and
(b) One other member of the Senate;
(4) The speaker of the House of Representatives shall appoint the following two Representatives:
(a) A member of the House Judiciary Committee; and
(b) One other member of the House of Representatives;
(5) The South Dakota Superintendent's Association shall appoint one representative from a large school district and one representative from a small school district; and
(6) The attorney general shall appoint one state's attorney.
The oversight council shall select a chair and a vice chair every two years. Appointed members shall serve two-year terms and may be reappointed.
Source: SL 2015, ch 152, § 12; SL 2016, ch 146, § 3, eff. Mar. 25, 2016; SL 2023, ch 88, § 2.
26-8D-9. Council--Sunset--Meetings--Tasks.
The oversight council terminates on June 30, 2031, unless the Legislature continues the oversight council for a specified period of time. The oversight council shall meet semi-annually or at the call of its chair or at the request of a majority of its members. The oversight council may:
(1) Review the juvenile justice system for changes that improve public safety, reduce recidivism, hold youth accountable, provide better outcomes for children and families, and control juvenile justice costs;
(2) Review performance measures and outcome measures required by this chapter and proposed by the Department of Corrections, Unified Judicial System, and Department of Social Services, and recommend any additional measures needed to identify outcomes in the juvenile justice system;
(3) Review performance measures and outcome measures submitted semiannually by the Department of Corrections, Unified Judicial System, and Department of Social Services pursuant to §§ 26-8D-4, 26-8D-12, 26-8D-15, 26-8D-16, 26-8D-19, and 26-8D-20;
(4) Review efforts by the Department of Social Services to ensure delivery of treatment in rural areas and related performance measures, and statewide availability of evidence-based programs and practices involving cognitive behavioral health and family therapy programs for justice-involved youth;
(5) Assess implementation and infrastructure to support the sustainability and fidelity of evidence-based juvenile justice programs, including resources for staffing;
(6) Track progress and make recommendations to improve outcomes for Native American children in the juvenile justice system;
(7) Review the payments of the diversion incentive program to counties, pursuant to § 26-8D-2, and performance-based reimbursement payments to group care and residential treatment centers pursuant to §§ 26-8D-17 and 26-8D-18;
(8) Review training related to juvenile justice for educators, law enforcement, probation, attorneys, corrections, program providers, and judges;
(9) Review proven truancy and diversion models and best practices and make recommendations for statewide implementation; and
(10) Prepare and submit an annual summary report of the performance and outcome measures that are part of this chapter and any recommendations for improvements related to juvenile justice to the Legislature, Governor, and Chief Justice.
Source: SL 2015, ch 152, § 13; SL 2020, ch 109, § 1; SL 2023, ch 88, § 1.
26-8D-10. Community response teams--Purpose--Members--Confidentiality of records.
The presiding judge of each judicial circuit may appoint one or more community response teams to assist judges by recommending viable community-based interventions for children alleged to be delinquent and children alleged to be in need of supervision. Each team appointed must include the court services officer in the jurisdiction where the team is to operate, a representative of a public school district in which the team is to operate, and designees of the secretaries of the Departments of Social Services and Corrections. Each team may include one or more representatives of the public. The Unified Judicial System shall maintain a record of the membership of each team and report nonidentifying data to the oversight council. The team may operate telephonically or through electronic communications.
The records prepared or maintained by the team are confidential. However, the records may be inspected by, or disclosed to, justices, judges, magistrates, and employees of the Unified Judicial System in the course of their duties; the attorney for the child and child's parents, guardian, or other custodian; the state's attorney prosecuting the case; and to any person specifically authorized by order of the court. The record of the team may only be released to a third party upon good cause shown to the satisfaction of the court that the release is necessary and the information contained in the record is not available elsewhere.
Source: SL 2015, ch 152, § 14, eff. Jan. 1, 2016; SL 2023, ch 87, § 2.
26-8D-11. Promulgation of rules regarding community response teams.
The Supreme Court may establish rules, pursuant to § 16-3-1, regarding formation of a community response team and the procedures to be followed by the team.
Source: SL 2015, ch 152, § 15, eff. Jan. 1, 2016.
26-8D-12. Report of nonidentifying aggregate data for jurisdictions where community response team established.
The Unified Judicial System shall provide semiannually to the oversight council the following nonidentifying aggregate data for any jurisdiction where a community response team has been established:
(1) Number of referrals to the team by each judicial circuit;
(2) The number and percent of referrals by each judicial circuit where the team recommendation is provided;
(3) The number and percent of cases where the team located a community based alternative;
(4) The recommendation of the team for each case; and
(5) The disposition of the court.
Source: SL 2015, ch 152, § 18, eff. Jan. 1, 2016.
26-8D-13. Recipients of community services--Liability.
Any child required to participate in a community service program is not an agent or employee of the recipients of these services. Any recipient of community service, described in §§ 26-8C-7 and 26-8B-6, does not have to provide the child with reemployment assistance insurance pursuant to title 61 nor with workers' compensation insurance pursuant to title 62. Each recipient and the recipient's officers, agents, and employees are immune from any cause of action for civil damages brought by the child, parents, guardians, or any third party if the cause of action arises from any act of commission or omission by the recipient or any of its officers, agents, or employees or any act of commission or omission by the child and the acts arise out of or are in connection with a community service program, except if the cause of action is the result of gross negligence or willful and wanton misconduct of the recipient or its officers, agents, or employees and except to the extent that the recipient has purchased liability insurance. Nothing in this section relieves any individual child from responsibility for the child's individual acts.
Source: SL 2015, ch 152, § 21; SL 2019, ch 216, § 33.
26-8D-14. Findings of fact and conclusions of law justifying need for extended detention.
If a judge orders more than fourteen days of detention in a thirty-day period pursuant to § 26-8C-7 or 26-8B-6, the court shall enter findings of fact and conclusions of law to include in the dispositional decree justifying the need for extended detention.
Source: SL 2015, ch 152, § 22.
26-8D-15. Unified Judicial System semiannual report to oversight council--Contents.
The Unified Judicial System shall report semiannually to the oversight council:
(1) The number of juvenile probation admissions;
(2) The number of juveniles for whom a request for extension is made;
(3) The number and percent of juveniles for whom extensions are granted;
(4) The number of requests for extension;
(5) The number and percent of requests granted;
(6) The reason for discharge and length of probation for juveniles discharged from supervision; and
(7) The recidivism rate.
The Unified Judicial System shall report semiannually to the oversight council the number of children placed in a detention facility pursuant to subdivisions 26-8C-7(5) and 26-8B-6(3) and the duration of each detention stay. The Unified Judicial System shall report semiannually to the oversight council the number of children eligible for informal adjustment and informal action pursuant to § 26-7A-11.1, and the number and percent of children for whom good cause is found for the state's attorney to proceed on a petition if the child is otherwise eligible for informal adjustment and informal action pursuant to § 26-7A-11.1. The Unified Judicial System shall report semiannually to the oversight council the number of children summoned to court on a juvenile cited violation pursuant to § 26-7A-126, the number of children summoned to court on a juvenile cited violation referred for informal adjustment and informal action pursuant to § 26-7A-127, and the number petitioned under § 26-7A-127.
Source: SL 2015, ch 152, § 24, eff. Jan. 1, 2016.
26-8D-16. Unified Judicial System semiannual report to oversight council on probation.
The Unified Judicial System shall report semiannually to the oversight council the number and percent of juvenile probationers who received a graduated response, the number and percent of juvenile probationers receiving a formal allegation of a probation violation, the number and percent of juveniles whose probation is revoked, and the action taken as a result of the revocation.
Source: SL 2015, ch 152, § 26, eff. Jan. 1, 2016.
26-8D-17. Placement in group care facility--Performance-based reimbursement--Juvenile corrections facilities to operate programs to achieve treatment goals and release to aftercare.
The Department of Corrections, pursuant to the provisions of chapter 26-11A and § 26-8C-7 or 26-8B-6, may place a child in a group care center operated and maintained by a nonstate entity only in accordance with a performance-based reimbursement rate structure as provided in the provider contract and as provided by this section.
If a provider is able to substantially accomplish the treatment goals and release a child from group care within the performance expectation period, a performance-based reimbursement payment shall be included in the payment allocation. The maximum performance-based reimbursement payment shall be allocated when a provider is able to substantially accomplish the treatment goals and release a child within three months. A diminished performance-based reimbursement payment shall be allocated when a provider is able to substantially accomplish the treatment goals and release a child in more than three months but less than four months. The performance-based reimbursement payment is in addition to the provider reimbursement rate as established by the Department of Social Services.
The Department of Corrections shall determine the need for placement in a group care facility upon admission and review the placement monthly thereafter. Upon finding that the child is no longer in need of placement, the child shall be released to aftercare pursuant to § 26-11A-12. If the child cannot be released to aftercare at no fault of the provider, a performance-based reimbursement payment shall be added to the payment allocation as long as the provider otherwise qualifies for that payment.
If a provider terminates a child prior to substantial completion of the treatment goals and the Department of Corrections transfers the child to another facility, the transferring provider does not qualify for a performance-based payment under this section for that child.
Juvenile corrections facilities maintained and operated by the Department of Corrections shall design and operate programs to achieve substantial accomplishment of treatment goals and the release to aftercare within three months.
Specialized transition services are exempt from the performance-based reimbursement rate structure.
After January 1, 2019, the Department of Corrections may promulgate rules, pursuant to chapter 1-26, to continue or create additional or alternative performance-based reimbursement period timeframes.
Source: SL 2015, ch 152, § 32, eff. Jan. 1, 2016.
26-8D-18. Placement in residential treatment center or intensive residential treatment center--Performance-based reimbursement.
The Department of Corrections, pursuant to the provisions of chapter 26-11A and § 26-8C-7 or 26-8B-6, may place a child in a residential treatment center or intensive residential treatment center only in accordance with a performance-based reimbursement rate structure as provided in the provider contract and provided by this section.
If a provider is able to substantially accomplish the treatment goals and release a child from residential or intensive residential treatment within the performance expectation period, a performance-based reimbursement payment shall be added to the payment allocation. For those providers that substantially meet the treatment goals and release within three months, a maximum performance-based reimbursement payment shall be added to the payment allocation. For those providers that substantially meet the treatment goals and release within five, seven, or nine months, a diminished performance-based reimbursement payment, which decreases as length of stay increases, shall be added to the payment allocation.
The provider contracts shall provide how the Department of Corrections may use state general fund dollars in the performance expectation allocation. The performance-based reimbursement payment is in addition to the provider reimbursement rate as established by the Department of Social Services.
The Department of Corrections shall evaluate monthly the need for continued placement in a residential treatment center or intensive residential treatment center. Upon a finding that the child is no longer in need of placement, the child shall be released to aftercare pursuant to § 26-11A-12 or specialized transition services. If the child cannot be released to aftercare at no fault of the provider, a performance-based reimbursement payment shall be added to the payment allocation as long as the provider otherwise qualifies for that payment.
If a provider terminates a child prior to substantial completion of the treatment goals and the Department of Corrections transfers the child to another facility, the transferring provider does not qualify for additional performance-based reimbursement payment under this section for that child.
After January 1, 2019, the Department of Corrections may promulgate rules, pursuant to chapter 1-26, to continue or create additional or alternative performance-based reimbursement period timeframes.
Source: SL 2015, ch 152, § 33, eff. Jan. 1, 2016.
26-8D-19. Department of Corrections semiannual report to oversight council--Contents.
The Department of Corrections shall report semiannually to the oversight council the number of children committed, number of recommitments, the average length of stay in residential placement in total and by provider, and average length of commitment among children discharged from the Department of Corrections.
Source: SL 2015, ch 152, § 34.
26-8D-20. Department of Corrections semiannual report to oversight council on aftercare.
The Department of Corrections shall report semiannually to the oversight council the number and percent of juveniles violating aftercare, the number and percent of juveniles whose aftercare is revoked, and the action taken as a result of the revocation.
Source: SL 2015, ch 152, § 36.
26-8D-21. Juvenile justice detention cost-sharing fund created.
The juvenile justice detention cost-sharing fund is hereby created in the Department of Corrections for the purpose of assisting counties with increased costs due to increased juvenile detention expenses paid by counties.
Source: SL 2015, ch 152, § 42.
26-8D-22. Participating and nonparticipating counties.
Any county that provides the Department of Corrections with documentation showing juvenile detention bed days paid by the county for calendar years 2013, 2014, and 2015 by March 1, 2016, is considered a participating county. All other counties are nonparticipating counties. A nonparticipating county may become a participating county in subsequent years by submitting the data in this section and complying with the requirements in § 26-8D-23.
Source: SL 2015, ch 152, § 43.
26-8D-23. Reimbursement of participating counties.
Beginning on March 1, 2017, and March first of each year thereafter, each participating county shall submit to the Department of Corrections the number of juvenile detention bed days paid by the county in the preceding calendar year. Only a participating county is eligible for reimbursement from the juvenile justice detention cost-sharing fund. The participating counties shall be determined on an annual basis.
Source: SL 2015, ch 152, § 44.
26-8D-24. Amount of reimbursement.
The Department of Corrections shall compare the number of detention bed days each county paid in the preceding calendar year to the average number of detention bed days paid in calendar years 2013, 2014, and 2015. If the days paid in the calendar year in question exceed the average, the Department of Corrections shall pay the county two hundred dollars per day for each day exceeding the average. If the amount owed the participating counties exceeds the amount of money in the fund, the amount reimbursed per bed day shall be prorated to fulfill all requests.
Source: SL 2015, ch 152, § 45.
26-8E-1
Policy of the judicial system.
26-8E-2
Statewide use of response grids.
26-8E-3
Incentives grid.
26-8E-4
Response grids to be standard condition of probation.
26-8E-5
Conduct requiring probation violation report--Modification or revocation of
probation.
26-8E-6
Sanctions grid--Documentation for sanction or incentive.
26-8E-7
Factors for imposing sanction--Positive reinforcement.
26-8E-8
Detention.
26-8E-9
Term of probation.
26-8E-10
Juvenile response grid oversight committee.
26-8E-11
Sentencing court's authority not limited.
APPENDIX A.
APPENDIX B.
26-8E-1. Policy of the judicial system.
Pursuant to § 26-7A-125, the Supreme Court hereby adopts the following juvenile graduated response grid and rules to guide court services officers in determining the appropriate response to a violation or compliance with the conditions of juvenile probation. It is the policy of the Unified Judicial System that violations of probation be addressed in a timely, consistent and reasonable manner by use of a graduated response grid. The use of graduated sanctions and incentives is intended to achieve public safety by holding juvenile offenders accountable for their behavior and reinforcing positive behavior.
Source: SL 2016, ch 240 (Supreme Court Rule 16-01), eff. Feb. 1, 2016.
26-8E-2. Statewide use of response grids.
The response grids in Appendix A and Appendix B to this chapter are hereby adopted for statewide use by court services officers. The response grids shall be utilized statewide for all juvenile delinquency and child in need of supervision (CHINS) cases supervised through court services.
Source: SL 2016, ch 240 (Supreme Court Rule 16-01), eff. Feb. 1, 2016.
26-8E-3. Incentives grid.
Court services officers should utilize the incentives grid to provide incentives for compliance with the conditions of probation. Incentives should be individualized to the juvenile and provided in a manner that acknowledges achievements and reinforces positive behavior.
Source: SL 2016, ch 240 (Supreme Court Rule 16-01), eff. Feb. 1, 2016.
26-8E-4. Response grids to be standard condition of probation.
These response grids shall be made a standard condition of juvenile probation and the juvenile probationer shall be informed that they may seek review of any moderate or serious sanction imposed by requesting review by the chief court services officer for the judicial circuit. In the event the supervising court services officer is the chief court services officer, the probationer may request review of such determination by a chief court services officer from another judicial circuit which shall be assigned by the director of trial court services. The decision made by the chief court services officer concerning the imposition of a sanction is final. Any requests for review shall be documented by the court services officer.
Source: SL 2016, ch 240 (Supreme Court Rule 16-01), eff. Feb. 1, 2016.
26-8E-5. Conduct requiring probation violation report--Modification or revocation of probation.
The response grid applies to conduct that is a violation of the terms and conditions of juvenile probation including an arrest for a new offense. If a juvenile probationer is arrested for a violent offense or an offense that involves substantial threat of violence or a sex offense the court services officer shall submit a probation violation report to the state's attorney and file a petition to modify or revoke probation with the court. If a juvenile probationer's conduct demonstrates a significant risk to public safety the court services officer shall immediately submit a probation violation report.
Source: SL 2016, ch 240 (Supreme Court Rule 16-01), eff. Feb. 1, 2016.
26-8E-6. Sanctions grid--Documentation for sanction or incentive.
A court services officer shall respond to a violation through the application of the sanctions grid by utilizing the appropriate cells based on the juvenile probationer's risk level and the type of violation. The imposition of sanctions within a grid cell is vested to the discretion of the supervising court services officer. A court services officer may deviate up or down from the cell with supervisor approval. Not all responses in each grid may be appropriate for all violations or for all juvenile probationers. Graduated responses may be used individually or in combination and include formal and informal responses to probation violations. The imposition of any sanction or incentive shall be documented by the court services officer.
Source: SL 2016, ch 240 (Supreme Court Rule 16-01), eff. Feb. 1, 2016.
26-8E-7. Factors for imposing sanction--Positive reinforcement.
Court services officers shall consider the risk the juvenile probationer poses to the community, the severity of any violation, prior history on probation, previous violations or sanctions, and the deterrent effect when imposing a sanction. The court services officer shall also employ positive reinforcement for a probationer's compliance with the conditions of supervision and completion of benchmarks during the term of supervision.
Source: SL 2016, ch 240 (Supreme Court Rule 16-01), eff. Feb. 1, 2016.
26-8E-8. Detention.
Detention shall only be requested in conjunction with the filing of a formal petition to modify or revoke probation.
Source: SL 2016, ch 240 (Supreme Court Rule 16-01), eff. Feb. 1, 2016.
26-8E-9. Term of probation.
A sanction cannot extend the term of probation.
Source: SL 2016, ch 240 (Supreme Court Rule 16-01), eff. Feb. 1, 2016.
26-8E-10. Juvenile response grid oversight committee.
There is hereby established a juvenile response grid oversight committee to consider recommendations to the graduated response grid and make such changes as the committee determines appropriate by majority vote. The committee shall be appointed by the Chief Justice of the South Dakota Supreme Court. The committee shall consist of nine members and be composed of two judges, two chief court services officers, one deputy chief court services officer, two court services officers that are not chief or deputy chief court services officers, one state's attorney and one defense attorney. The director of trial court services shall also serve as a non-voting member of the committee. The committee shall meet within 180 days from appointment and at least annually thereafter.
Source: SL 2016, ch 240 (Supreme Court Rule 16-01), eff. Feb. 1, 2016.
26-8E-11. Sentencing court's authority not limited.
Nothing in this chapter shall be construed to limit the sentencing court's ability to respond to a probation violation or modify the terms and conditions of probation.
Source: SL 2016, ch 240 (Supreme Court Rule 16-01), eff. Feb. 1, 2016.
South Dakota's Juvenile Supervisory Responses (JSR)
-Sanctions-
| Undesired Behavior- Severity Level | Low/Admin Risk Juvenile (YLS) |
Medium Risk Juvenile
(YLS) |
High Risk Juvenile (YLS) |
|
Minor 1 . Disruptive Behaviors/Disobedience 2 . Dishonesty 3 . Failure to Complete Assignment/Directive 4 . Truancy 5 . Failure to Attend Probation Meeting 6 . Association with Prohibited Peers 7 . Failure to Pay Court-Ordered Financials 8 . Failure to Complete Community Service 9 . School Infractions 10 . Runaway 11 . Driving without Permission 12 . Positive Drug Test 13 . PBT of .07 or lower 14 . House Arrest Violation 15 . Intimidating/Threatening Others 16 . Gang Association (minor- colors, drawings etc.) 17 . Curfew Violation 18 . Missed Programming Appointment (first time) 19 . Refusal to UA/PBT 20 . Admitted Ingestion |
1 .
Verbal
Consequence
2 . Adjust Curfew 3 . Homework Verification 4 . CD Evaluation 5 . Community Service 6 . Counseling Service 7 . Support Parental Rules 8 . Increase Face to Face 9 . Increase Phone Contact 10 . Limit Overnight with Friends 11 . Parent Proposed Sanction 12 . Parent-Child Conference 13 . Restrict Privileges/Friends 14 . School Progress Reports 15 . Written Assignment 16 . Youth Proposed Sanction 1 . Discretion of CSO, Appropriate per Violation |
1 .
Verbal
Consequence
2 . Adjust Curfew 3 . Homework Verification 4 . CD Evaluation 5 . Community Service 6 . Counseling Service 7 . Support Parental Rules 8 . Increase Face to Face 9 . Increase Phone Contact 10 . Limit Overnight with Friends 11 . Parent Proposed Sanction 12 . Parent-Child Conference 13 . Restrict Privileges/Friends 14 . School Progress Reports 15 . Written Assignment 16 . Youth Proposed Sanction 17 . Behavior Modification Group 18 . Discretion of CSO, Appropriate per Violation |
1 .
Verbal
Consequence
2 . Adjust Curfew 3 . Homework Verification 4 . CD Evaluation 5 . Community Service 6 . Counseling Service 7 . Support Parental Rules 8 . Increase Face to Face 9 . Increase Phone Contact 10 . Limit Overnight with Friends 11 . Parent Proposed Sanction 12 . Parent-Child Conference 13 . Restrict Privileges/Friends 14 . School Progress Reports 15 . Written Assignment 16 . Youth Proposed Sanction 17 . Scheduled Problem-solving meeting with CSO 18 . Behavior Modification Group 19 . Discretion of CSO, Appropriate per Violation |
|
Moderate 1 . Continuous or Repetitive Undesired Minor Behaviors 2 . New Nonviolent Offense 3 . Gang Involvement-Moderate Vandalism, Graffiti etc. 4 . Discharged Unsuccessfully from Programming 5 . PBT of .08 or Higher |
1 .
Verbal
Consequence
2 . Adjust Curfew 3 . Behavior Modification Group 4 . CD Evaluation 5 . Community Service 6 . Counseling Service 7 . Support Parental Rules 8 . House Arrest 9 . Increase Face to Face 10 . Increase Phone Contact 11 . Limit Overnight with Friends 12 . Parent Proposed Sanction 13 . Parent-Child Conference 14 . Restrict Privileges/Friends 15 . School Progress Reports 16 . Weekly Counseling Reports 17 . Written Assignment 18 . Youth Proposed Sanction 19 . Scheduled Problem-Solving Meeting with CSO 20 . Review of Future sanctions if Behaviors Continue 21 . Day/Evening Reporting |
1 .
Verbal
Consequence
2 . Adjust Curfew 3 . Behavior Modification Group 4 . CD Evaluation 5 . Community Service 6 . Counseling Service 7 . Support Parental Rules 8 . House Arrest 9 . Increase Face to Face 10 . Increase Phone Contact 11 . Limit Overnight with Friends 12 . Parent Proposed Sanction 13 . Restrict Privileges/Friends 14 . School Progress Reports 15 . Weekly Counseling Reports 16 . Written Assignment 17 . Youth Proposed Sanction 18 . Scheduled Problem-solving Meeting with CSO 19 . Review of Future Sanctions if Behaviors Continue 20 . Day/Evening Reporting 21 . Electronic Monitoring |
1 .
Verbal
Consequence
2 . Adjust Curfew 3 . Behavior Modification Group 4 . CD Evaluation 5 . Community Service 6 . Counseling Service 7 . Support Parental Rules 8 . House Arrest 9 . Increase Face to Face 10 . Increase Phone Contact 11 . Limit Overnight with Friends 12 . Parent Proposed Sanction 13 . Restrict Privileges/Friends 14 . School Progress Reports 15 . Weekly Counseling Reports 16 . Written Assignment 17 . Youth Proposed Sanction 18 . Scheduled Problem-solving Meeting with CSO 19 . Review of Future Sanctions if Behaviors Continue 20 . Day/Evening Reporting 21 . Electronic Monitoring 22 . Parent-Child Conference |
|
23 .
Discretion of
CSO,
Appropriate
per Violation
|
1 .
Parent-Child
Conference
2 . Discretion of CSO, Appropriate per Violation |
3 .
Discretion of
CSO,
Appropriate
per Violation
|
|
Serious 1 . Continuous or Repetitive Undesired Minor Behaviors 2 . Continuous or Repetitive Undesired Moderate Behaviors 3 . Tampering with UA 4 . Positive UA other than THC 5 . Contact with victim Possession of unauthorized weapon 6 . *New violent offense or substantial threat of violence 7 . *Sex offense 8 . *Abscond |
1 .
Verbal
Consequence
2 . Adjust Curfew 3 . Behavior Modification Group 4 . CD Evaluation 5 . Community Service 6 . Counseling Service 7 . Support Parental Rules 8 . House Arrest 9 . Electronic Monitoring 10 . Court Observation 11 . Increase Face to Face 12 . Increase Phone Contact 13 . Limit Overnight with Friends 14 . Parent Proposed Sanction 15 . Parent-Child Conference 16 . Restrict Privileges/Friends 17 . School Progress Reports 18 . Weekly Counseling Reports 19 . Written Assignment 20 . Youth Proposed Sanction 21 . Scheduled Problem-Solving Meeting with CSO 22 . Day/Evening Reporting |
1 .
Verbal
Consequence
2 . Adjust Curfew 3 . Behavior Modification Group 4 . CD Evaluation 5 . Community Service 6 . Counseling Service 7 . Support Parental Rules 8 . House Arrest 9 . Electronic Monitoring 10 . Court Observation 11 . Increase Face to Face 12 . Increase Phone Contact 13 . Limit Overnight with Friends 14 . Parent Proposed Sanction 15 . Parent-Child Conference 16 . Restrict Privileges/Friends 17 . School Progress Reports 18 . Weekly Counseling Reports 19 . Written Assignment 20 . Youth Proposed Sanction 21 . Scheduled Problem-Solving Meeting with CSO 22 . Day/Evening Reporting |
1 .
Verbal
Consequence
2 . Adjust Curfew 3 . Behavior Modification Group 4 . CD Evaluation 5 . Community Service 6 . Counseling Service 7 . Support Parental Rules 8 . House Arrest 9 . Electronic Monitoring 10 . Court Observation 11 . Increase Face to Face 12 . Increase Phone Contact 13 . Limit Overnight with Friends 14 . Parent Proposed Sanction 15 . Parent-Child Conference 16 . Restrict Privileges/Friends 17 . School Progress Reports 18 . Weekly Counseling Reports 19 . Written Assignment 20 . Youth Proposed Sanction 21 . Scheduled Problem-Solving Meeting with CSO 22 . Day/Evening Reporting |
|
1 .
Violation
Report with the
Court-Detention
Request
2 . Increase in Risk Level/Super vision Level 3 . Discretion of CSO, Appropriate per Violation |
1 .
Violation
Report with the
Court-
Detention
Request
2 . Discretion of CSO, Appropriate per Violation
|
3 .
Violation
Report with the
Court-
Detention
Request
4 . Discretion of CSO, Appropriate per Violation |
Source: SL 2016, ch 240 (Supreme Court Rule 16-01), eff. Feb. 1, 2016.
South Dakota's Juvenile Supervisory Responses (JSR)
-Incentives-
| Desired Behaviors | Low Level Incentive |
Moderate Level
Incentive |
High Level Incentive |
|
Compliant
(Contemplation
Stage of Change)
Desired behavior
would be that the
juvenile is meeting the
conditions of probation
or has shown an
improvement in
meeting those
conditions. |
1 .
Verbal Praise
2 . Written Praise 3 . Drawing from a Prize Bucket 4 . Encourage School Staff Recognition for Child 5 . Decrease Phone Contact 6 . Parent and Juvenile Recommended Incentives. |
1 .
Verbal Praise
2 . Written Praise 3 . Drawing from a Prize Bucket 4 . Encourage School Staff Recognition for Child 5 . Decrease Phone Contact 6 . Parent and Juvenile Recommended Incentives 7 . Reduce meetings 8 . Eliminate Electronic Monitoring 9 . Allow overnights with Friends |
1 .
Verbal Praise
2 . Written Praise 3 . Drawing from a Prize Bucket 4 . Reduce Meetings 5 . Allow Overnights with Friends 6 . Encourage School Staff Recognition for Child 7 . Decrease Phone Contact 8 . Parent and Juvenile Recommended Incentives 9 . Reduce meetings 10 . Eliminate Electronic Monitoring 11 . Allow overnights with Friends 12 . Reduced UAs/PBTs 13 . Job Shadowing 14 . Moderate Financial Reward (gift cards, activity fees, tickets, recreational passes, memberships under $15 etc.) 15 . Reduced Probation Condition 16 . Extend Curfew |
|
Demonstrated
Improvement
(Action Stage of
Change)
-Strategies for change
are chosen and |
1 .
Verbal Praise
2 . Written Praise 1 . Moderate Financial Reward (gift cards, activity fees, tickets, recreational passes, memberships under $15 etc.) 1 . Reduced Probation Condition 2 . Reduced UAs/PBTs 3 . Drawing from a Prize Bucket 4 . Reduce Meetings 5 . Allow Overnights with Friends 6 . Encourage School Staff Recognition for Child 7 . Extend Curfew 8 . Decrease Phone Contact 9 . Graduation Certificate/Ceremonies for Accomplishments 10 . Reduce Telephone Contact 11 . Higher Level Financial Rewards (gift cards, activity fees, tickets, recreational passes, memberships over $15 etc.) 12 . Job Shadowing 13 . Recommend Reduced Probation Term
|
1 .
Verbal Praise
2 . Written Praise 3 . Moderate Financial Reward (gift cards, activity fees, tickets, recreational passes, memberships under $15 etc.) 1 . Reduced Probation Condition 2 . Reduced UAs/PBTs 3 . Drawing from a Prize Bucket 4 . Reduce Meetings 5 . Allow Overnights with Friends 6 . Encourage School Staff Recognition for Child 7 . Decrease Phone Contact 8 . Graduation Certificate/Ceremonies for Accomplishments 1 . Reduce Telephone Contact 2 . Higher Level Financial Rewards (gift cards, activity fees, tickets, recreational passes, memberships over $15 etc.) 3 . Job Shadowing
|
1 .
Verbal Praise
2 . Written Praise 3 . Moderate Financial Reward (gift cards, activity fees, tickets, recreational passes, memberships under $15 etc.) 1 . Reduced Probation Condition 2 . Reduced UAs/PBTs 3 . Drawing from a Prize Bucket 4 . Reduce Meetings 5 . Allow Overnights with Friends 6 . Encourage School Staff Recognition for Child 7 . Backpack Program- food, school supplies 8 . Increase Driving Privileges 9 . Extend Curfew 10 . Decrease Phone Contact 11 . Graduation Certificate/Ceremonies for Accomplishments 12 . Reduce Telephone Contact 1 . Higher Level Financial Rewards (gift cards, activity fees, tickets, recreational passes, memberships over $15 etc.) |
|
1 .
Eliminate
Electronic
Monitoring
2 . Acknowledgement by the Judge for Positive Behaviors 3 . Parent and Juvenile recommended incentives 1 . College/Career Planning session 2 . School Spirit Wear |
3 .
Eliminate
Electronic
Monitoring
4 . Acknowledgement by the Judge for Positive Behaviors 5 . Parent and Juvenile Recommended Incentives 6 . College/Career Planning Session 1 . School Spirit Wear 2 . Backpack Program- food, school supplies 3 . Increase Driving Privileges 4 . Extend Curfew 5 . Reduce Community Service Hours |
1 .
Job Shadowing
2 . Recommend Reduced Probation Term 3 . Eliminate Electronic Monitoring 1 . Acknowledgement by the Judge for Positive Behaviors 2 . Parent and Juvenile Recommended Incentives 3 . College/Career Planning Session 4 . School Spirit Wear 5 . Backpack Program- food, school supplies 6 . Increase Driving Privileges 7 . Extend Curfew 8 . Reduce Community Service Hours |
|
Significant
Improvement
(Action Stage of
Change)
Desired behavior
would indicate a
demonstration of
commitment and
progress to meeting the
terms of probation and
would be associated
with a level of
improvement that
shows effective change
by the juvenile.
-Sustaining new habits
|
1 .
Verbal Praise
2 . Written Praise 3 . Moderate Financial Reward (gift cards, activity fees, tickets, recreational passes, memberships under $15 etc.) 4 . Reduced Probation Condition 5 . Reduced UAs/PBTs 6 . Drawing from a Prize Bucket 7 . Reduce Meetings 8 . Allow Overnights with Friends 9 . Encourage School Staff Recognition for Child 10 . Backpack Program-food, school supplies 1 . Increase Driving Privileges 2 . Extend Curfew 3 . Decrease Phone Contact 4 . Graduation Certificate/Ceremonies for Accomplishments 5 . Reduce Telephone Contact 6 . Higher Level Financial Rewards (gift cards, activity fees, tickets, recreational passes, memberships over $15 etc.) |
1 .
Verbal Praise
2 . Written Praise 3 . Moderate Financial Reward (gift cards, activity fees, tickets, recreational passes, memberships under $15 etc.) 4 . Reduced Probation Condition 5 . Reduced UAs/PBTs 6 . Drawing from a Prize Bucket 7 . Reduce Meetings 8 . Allow Overnights with Friends 9 . Encourage School Staff Recognition for Child 10 . Backpack Program-food, school supplies 1 . Increase Driving Privileges 2 . Extend Curfew 3 . Decrease Phone Contact 4 . Graduation Certificate/Ceremonies for Accomplishments 5 . Reduce Telephone Contact 6 . Higher Level Financial Rewards (gift cards, activity fees, tickets, recreational passes, memberships over $15 etc.) |
1 .
Verbal Praise
2 . Written Praise 3 . Moderate Financial Reward (gift cards, activity fees, tickets, recreational passes, memberships under $15 etc.) 4 . Reduced Probation Condition 5 . Reduced UAs/PBTs 6 . Drawing from a Prize Bucket 7 . Reduce Meetings 8 . Allow Overnights with Friends 9 . Encourage School Staff Recognition for Child 1 . Backpack Program- food, school supplies 2 . Increase Driving Privileges 3 . Extend Curfew 1 . Decrease Phone Contact 2 . Graduation Certificate/Ceremonies for Accomplishments 3 . Reduce Telephone Contact 4 . Higher Level Financial Rewards (gift cards, activity fees, tickets, recreational passes, memberships over $15 etc.) |
|
1 .
Photo ID Costs
2 . Job Shadowing 3 . Recommend Reduced Probation Term 4 . Eliminate Electronic Monitoring 5 . Acknowledgement by the Judge for Positive Behaviors 6 . Parent and Juvenile Recommended Incentives 7 . Reduce Community Service Hours 8 . Recommend Court Reduction in Fines or Fees. 9 . College/Career Planning Session 10 . School Spirit Wear 11 . Payment for high school equivalency testing |
1 .
Photo ID Costs
2 . Job Shadowing 3 . Recommend Reduced Probation Term 4 . Eliminate Electronic Monitoring 5 . Acknowledgement by the Judge for Positive Behaviors 6 . Parent and Juvenile Recommended Incentives 7 . Reduce Community Service Hours 8 . Recommend Court Reduction in Fines or Fees. 9 . College/Career Planning Session 10 . School Spirit Wear 11 . Payment for high school equivalency testing |
1 .
Photo ID Costs
2 . Job Shadowing 3 . Recommend Reduced Probation Term 4 . Eliminate Electronic Monitoring 5 . Acknowledgement by the Judge for Positive Behaviors 6 . Parent and Juvenile Recommended Incentives 7 . Reduce Community Service Hours 8 . Recommend Court Reduction in Fines or Fees. 9 . College/Career Planning Session 10 . School Spirit Wear 11 . Payment for high school equivalency testing |
Source: SL 2016, ch 240 (Supreme Court Rule 16-01), eff. Feb. 1, 2016; SL 2017, ch 77, § 3.
CHAPTER 26-9
CONTRIBUTING TO DELINQUENCY OR DEPENDENCY
26-9-1 Contributing to abuse, neglect, or delinquency or causing child to become child in need of supervision as misdemeanor.
26-9-2 Short terms used to describe offenses.
26-9-3 Original jurisdiction of prosecutions.
26-9-4 Probation officers authorized to file complaints--Assistance by state's attorney--General powers of state's attorney unimpaired.
26-9-5 Interpretation and construction in prosecutions under chapter.
26-9-6 Actual abuse, neglect, or delinquency not required for conviction.
26-9-7 Liberal construction for protection of child.
26-9-8 Criminal proceedings under other laws not prevented.
26-9-9 Consistency with other laws for support and protection of children.
26-9-10 Proceedings under chapter not prevented by similar laws--Duplicate prosecutions considered in mitigation.
26-9-11 Suspension, stay, or postponement of sentence--Release from custody on condition.
26-9-12 Abused or neglected child left in custody of person under suspended sentence--Conditions of suspension.
26-9-13 Enforcement of sentence after suspension or stay--Commencement of jail term.
26-9-14 Maximum period of suspension or stay of sentence--Release and discharge on compliance with terms.
26-9-15 Security for child support required after conviction for contributory abuse or contributory neglect--Forfeiture on failure to comply with conditions.
26-9-16 Separate suit not required to recover on bond--Order to show cause--Judgment on bond.
26-9-17 Disposition of recovery on bond.
26-9-1. Contributing to abuse, neglect, or delinquency or causing child to become child in need of supervision as misdemeanor.
Any person who, by any act, causes, encourages, or contributes to the abuse, the neglect, or the delinquency of a child, or any person, other than a parent who, by any act, causes a child to become a child in need of supervision, as such phrases with reference to children are defined by chapters 26-7A, 26-8A, 26-8B, and 26-8C, or who is, in any manner, responsible therefor, is guilty of a Class 1 misdemeanor.
Source: SDC 1939, § 43.9901; SL 1988, ch 214; SL 1993, ch 206, § 1.
26-9-2. Short terms used to describe offenses.
When any person is prosecuted under § 26-9-1, and the charge against such person concerns the abuse or neglect of a child, the offense for convenience may be termed contributory abuse or contributory neglect. If it concerns the delinquency of a child, for convenience it may be termed contributory delinquency. If it concerns a child in need of supervision, for convenience it may be termed contributing to the child's status as a child in need of supervision.
Source: SDC 1939, § 43.0401; SL 1993, ch 206, § 2; SL 2003, ch 149, § 14.
26-9-3. Original jurisdiction of prosecutions.
Subject to § 16-12B-11, the circuit court in all counties shall have original jurisdiction of all prosecutions under this chapter.
Source: SDC 1939, § 43.0408; SL 1971, ch 151, § 4; SL 2021, ch 86, § 3.
26-9-4. Probation officers authorized to file complaints--Assistance by state's attorney--General powers of state's attorney unimpaired.
Probation officers having the powers of peace officers, as well as state's attorneys, shall have the right and be vested with all power necessary to file complaints against any person under § 26-9-1 and to prosecute any such case. In all such cases it shall be the duty of the state's attorney to prepare any such complaints and prosecute any such cases for such probation officer when so requested by such officer or the judge of the circuit court; but nothing herein shall be construed to interfere with any state's attorney prosecuting such cases under this or any other law as in other criminal cases.
Source: SDC 1939, § 43.0407.
26-9-5. Interpretation and construction in prosecutions under chapter.
In prosecutions conducted as provided in this chapter, the rules of interpretation and construction set forth in §§ 26-9-6 to 26-9-10, inclusive, shall be observed.
Source: SDC 1939, § 43.0409.
26-9-6. Actual abuse, neglect, or delinquency not required for conviction.
In order to find any person guilty of violating this chapter, it is not necessary to prove that the child has actually become abused, neglected, or delinquent, provided it appears from the evidence that through any act of abuse, neglect, or omission of duty or by any improper act or conduct on the part of any such person the abuse, neglect, or delinquency of any child may have been caused or merely encouraged.
Source: SDC 1939, § 43.0409 (1); SL 1993, ch 206, § 3.
26-9-7. Liberal construction for protection of child.
This chapter and chapters 26-7A, 26-8A, 26-8B, and 26-8C shall be liberally construed in favor of the state for the purposes of the protection of the child from neglect or omission of parental duty toward the child by its parents, as well as to protect the children of the state from the effects of the improper conduct, acts, or the bad example of any person or persons whomsoever, which may be calculated to cause, encourage, or contribute to the dependency or delinquency of children, although such persons are in no way related to the child.
Source: SDC 1939, § 43.0409 (2).
26-9-8. Criminal proceedings under other laws not prevented.
Nothing in this chapter may be construed to be in conflict with or to repeal or prevent proceedings under any law of this state which may have otherwise defined any specific act of any person as a crime of any character, which act might also constitute contributory abuse, contributory neglect, or contributory delinquency, or to prevent or interfere with proceedings under any such law.
Source: SDC 1939, § 43.0409 (3); SL 1993, ch 206, § 4.
26-9-9. Consistency with other laws for support and protection of children.
This chapter shall not be construed to be inconsistent with any law providing for the support by the parent or parents of their minor children, or any law providing for the punishment of cruelty to children or the taking of indecent liberties with or selling liquors, tobacco, or firearms to children, or permitting them in evil or disreputable places.
Source: SDC 1939, § 43.0409 (3).
26-9-10. Proceedings under chapter not prevented by similar laws--Duplicate prosecutions considered in mitigation.
Nothing in any laws referred to in § 26-9-9 or similar laws shall be construed to be inconsistent with this chapter or chapters 26-7A, 26-8A, 26-8B, and 26-8C or to prevent proceedings hereunder, but in all cases where there shall be more than one prosecution for the same offense, under whatever law, the fact may be given in evidence to the judge of the court and may, in the discretion of the court, be considered in mitigation of any sentence in any such case.
Source: SDC 1939, § 43.0409 (3).
26-9-11. Suspension, stay, or postponement of sentence--Release from custody on condition.
The court may suspend sentence, stay, or postpone the enforcement of execution, or release from custody any person found guilty in any such prosecution, upon such conditions as shall be imposed by the court in accordance with the provisions of this chapter.
Source: SDC 1939, § 43.0402.
26-9-12. Abused or neglected child left in custody of person under suspended sentence--Conditions of suspension.
The court may permit any child to remain in the custody of the person found guilty of contributing to its abuse or neglect, under such suspended sentence, upon such conditions for the treatment and care of such child as may seem to the court to be for its best welfare, or as may be calculated to secure obedience to the law or to remove the cause of such abuse or neglect, and while such conditions are accepted and complied with by any such person, such sentence may remain suspended subject to be enforced upon the violation of any of the conditions imposed by the court.
Source: SDC 1939, § 43.0403; SL 1965, ch 177; SL 1993, ch 206, § 5.
26-9-13. Enforcement of sentence after suspension or stay--Commencement of jail term.
If any person has been found guilty of contributory abuse, contributory neglect, or contributory delinquency, and the court has suspended the execution of the sentence during the good behavior and satisfactory conduct of the defendant or upon any other terms and conditions which may have been imposed by the court, if it appears to the satisfaction of the court at any time during such suspended sentence or stay of execution that it ought to be enforced, the court may thereupon enforce the same, and any jail sentence thereunder shall commence from the date upon which such sentence is ordered to be enforced.
Source: SDC 1939, § 43.0405; SL 1993, ch 206, § 6.
26-9-14. Maximum period of suspension or stay of sentence--Release and discharge on compliance with terms.
No sentence shall be suspended or final judgment or execution stayed, in the case of any person found guilty under § 26-9-1, to exceed a period of two years. If at any time prior thereto it shall appear to the satisfaction of the court that such person has complied faithfully with the conditions of any suspended sentence, judgment, or execution, or is for any cause in the opinion of the court entitled to be released therefrom, the court may suspend such sentence indefinitely, in which case such person shall be finally released and discharged, as he shall be in any event at the end of two years from imposition of any such sentence. But if any defendant be actually serving a jail sentence imposed under § 26-9-1 and enforced before the expiration of such two years in accordance with the provisions of this chapter, then in such case the defendant shall not be finally discharged until the expiration of any such sentence.
Source: SDC 1939, § 43.0406.
26-9-15. Security for child support required after conviction for contributory abuse or contributory neglect--Forfeiture on failure to comply with conditions.
Any person found guilty under this chapter of contributory abuse or contributory neglect may be required to furnish a good and sufficient bond to the state in such penal sum as the court shall determine, not exceeding one thousand dollars, conditioned for the payment of such amount as the court may order, not exceeding seventy-five dollars per month, for the support, care, and maintenance of the child to whose abuse or neglect such person has contributed, such sum to be expended under the directions and orders of the court for the purposes mentioned. Such bond may be forfeited upon a failure to comply with any conditions as well as upon the failure to pay any amount required for the maintenance of such child.
Source: SDC 1939, § 43.0403; SL 1965, ch 177; SL 1993, ch 206, § 7.
26-9-16. Separate suit not required to recover on bond--Order to show cause--Judgment on bond.
As a part of the conditions of any bond mentioned in § 26-9-15, it shall be understood that it shall not be necessary to bring a separate suit to recover the penalty of any such bond which has become forfeited, but the court may cause a citation or summons to issue to the surety or sureties thereon, requiring that he or they appear at a time named by the court, which time shall be not less than ten nor more than twenty days from the issuance thereof, and show cause, if any there be, why judgment should not be entered for the penalty of such bond and execution issue for the amount thereof against the property of the surety or sureties thereon, as in civil cases, and upon failure to appear or failure to show any such sufficient cause, the court shall enter such judgment in behalf of the state against the principal and such surety or sureties on such bond, not to exceed the sum of one thousand dollars including the costs.
Source: SDC 1939, § 43.0404.
26-9-17. Disposition of recovery on bond.
Any money collected or paid upon any execution issued pursuant to § 26-9-16 or in any case upon such bond shall be turned over to the clerk of the court, to be applied first to the payment of all court costs and then to the care or maintenance of the child or children for whose dependency such conviction was had, in such manner and upon such terms as the court may direct. If any such money so collected be unnecessary for the purposes last mentioned, it shall be turned over within one year to the treasurer of the county.
Source: SDC 1939, § 43.0404.
CHAPTER 26-10
OFFENSES BY AND AGAINST MINORS
26-10-1 Abuse of or cruelty to minor as felony--Reasonable force as defense--Limitation of action.
26-10-1.1 26-10-1.1. Transferred to § 26-8A-23
26-10-2 26-10-2. Repealed by SL 1978, ch 159, § 1
26-10-2.1 Professional boxing by minors prohibited.
26-10-3 26-10-3. Repealed by SL 1971, ch 211, § 121
26-10-4 26-10-4. Repealed by SL 1977, ch 189, § 126
26-10-6 26-10-6. Repealed by SL 1977, ch 189, § 126
26-10-7 26-10-7. Repealed by SL 1974, ch 243, § 1
26-10-8 26-10-8. Repealed by SL 1979, ch 173
26-10-9 26-10-9. Repealed by SL 1994, ch 172, § 3
26-10-10 26-10-10 to 26-10-12.2. Transferred to §§ 26-8A-3 to 26-8A-10
26-10-12.3 26-10-12.3. Transferred to § 26-8A-13
26-10-14 26-10-14, 26-10-15. Transferred to §§ 26-8A-14, 26-8A-15
26-10-16 26-10-16, 26-10-17. Transferred to §§ 26-8A-17, 26-8A-18
26-10-17.1 26-10-17.1. Transferred to § 25-4-45.4
26-10-18 26-10-18. Transferred to § 26-8A-16
26-10-19 Tattooing minor without parental consent as misdemeanor.
26-10-20 Repealed.
26-10-21 26-10-21, 26-10-22. Repealed by SL 1994, ch 280, §§ 6, 7
26-10-23 26-10-23. Repealed by SL 1998, ch 215, § 2
26-10-24 Repealed.
26-10-25 Time for commencing civil action for damages resulting from childhood sexual abuse.
26-10-26 Date of discovery in child sexual abuse action.
26-10-27 Knowledge of parent or guardian.
26-10-28 "Child" defined.
26-10-29 "Childhood sexual abuse" defined.
26-10-30 Permitting physical or sexual abuse of child as felony--Affirmative defense.
26-10-31 Causing child to be present where methamphetamines used, distributed, or manufactured as misdemeanor.
26-10-32 Branding of a minor prohibited--Violation as misdemeanor or felony.
26-10-33 Juvenile sexting prohibited--Violation as misdemeanor.
26-10-34 Defenses to juvenile sexting.
26-10-35 Depiction of person charged not a defense to juvenile sexting.
26-10-1. Abuse of or cruelty to minor as felony--Reasonable force as defense--Limitation of action.
Any person who abuses, exposes, tortures, torments, or cruelly punishes a minor in a manner which does not constitute aggravated assault, is guilty of a Class 4 felony. If the victim is less than seven years of age, the person is guilty of a Class 3 felony. The use of reasonable force, as provided in § 22-18-5, is a defense to an offense under this section. Notwithstanding § 23A-42-2, a charge brought pursuant to this section may be commenced at any time before the victim becomes age twenty-five.
If any person convicted of this offense is the minor's parent, guardian, or custodian, the court shall include as part of the sentence, or conditions required as part of suspended execution or imposition of such sentence, that the person receive instruction on parenting approved or provided by the Department of Social Services.
Source: SDC 1939, §§ 13.3301, 13.3303; SDCL § 26-10-5; SL 1969, ch 32; SL 1975, ch 179, § 1; SL 1977, ch 189, § 96; SL 1983, ch 211, § 2; SL 1998, ch 162, § 3; SL 2001, ch 145, § 1; SL 2008, ch 140, § 1.
26-10-2.1. Professional boxing by minors prohibited.
No person under the age of eighteen years shall box professionally in the State of South Dakota.
Source: SL 1978, ch 301, § 2.
26-10-19. Tattooing minor without parental consent as misdemeanor.
No minor may be tattooed unless the minor's parents have signed a consent form authorizing the tattoo. Any person who tattoos a minor without parental consent is guilty of a Class 2 misdemeanor. The term "tattoo" means to make permanent marks or designs on the skin by puncturing it and inserting indelible colors.
Source: SL 1985, ch 216, §§ 1, 2.
26-10-25. Time for commencing civil action for damages resulting from childhood sexual abuse.
Any civil action based on intentional conduct brought by any person for recovery of damages for injury suffered as a result of childhood sexual abuse shall be commenced within three years of the act alleged to have caused the injury or condition, or three years of the time the victim discovered or reasonably should have discovered that the injury or condition was caused by the act, whichever period expires later. However, no person who has reached the age of forty years may recover damages from any person or entity other than the person who perpetrated the actual act of sexual abuse.
Source: SL 1991, ch 219, § 1; SL 2010, ch 141, § 1.
26-10-26. Date of discovery in child sexual abuse action.
The victim need not establish which act in a series of continuing sexual abuse or exploitation incidents caused the injury complained of, but may compute the date of discovery from the date of discovery of the last act by the same perpetrator which is part of a common course of conduct of sexual abuse or exploitation.
Source: SL 1991, ch 219, § 2.
26-10-27. Knowledge of parent or guardian.
The knowledge of a custodial parent or guardian may not be imputed to a person under the age of eighteen years for the purposes of §§ 26-10-25 to 26-10-29, inclusive.
Source: SL 1991, ch 219, § 3.
26-10-28. "Child" defined.
For the purposes of §§ 26-10-25 to 26-10-29, inclusive, a child is any person under the age of eighteen years.
Source: SL 1991, ch 219, § 4.
26-10-29. "Childhood sexual abuse" defined.
As used in §§ 26-10-25 to 26-10-29, inclusive, childhood sexual abuse is any act committed by the defendant against the complainant who was less than eighteen years of age at the time of the act and which act would have been a violation of chapter 22-22 or prior laws of similar effect at the time the act was committed which act would have constituted a felony.
Source: SL 1991, ch 219, § 5.
26-10-30. Permitting physical or sexual abuse of child as felony--Affirmative defense.
It is a Class 6 felony for any parent, guardian, or custodian to knowingly permit physical or sexual abuse of a child.
It is an affirmative defense, to be proven by clear and convincing evidence, to prosecution under this section if, at the time of the offense, there was a reasonable belief that acting to stop or to prevent the abuse would result in substantial bodily harm to the defendant or the child in retaliation.
Source: SL 2006, ch 146, § 1.
26-10-31. Causing child to be present where methamphetamines used, distributed, or manufactured as misdemeanor.
It is a Class 1 misdemeanor for any person to knowingly cause a child to be present where any person is using, distributing, or manufacturing methamphetamines.
Source: SL 2006, ch 146, § 2.
26-10-32. Branding of a minor prohibited--Violation as misdemeanor or felony.
No person may brand a minor. For the purposes of this section, the term, brand, means to make a permanent mark on a person's skin through the use of heat, cold, or a chemical compound, or to cut, tear, or abrade the skin for the purpose of creating a permanent mark or design. It is not a violation of this section to tattoo a minor in compliance with the provisions of § 26-10-19. It is not a violation of this section to pierce any part of a minor's body for the purpose of jewelry or adornment with consent. A violation of this section is a Class 1 misdemeanor. However, any second or subsequent violation of this section is a Class 6 felony.
Source: SL 2008, ch 141, § 1.
26-10-33. Juvenile sexting prohibited--Violation as misdemeanor.
No minor, as defined in subdivision 26-7A-1(21), may intentionally create, produce, distribute, present, transmit, post, exchange, disseminate, or possess, through any computer or digital media, any photograph or digitized image or any visual depiction of a minor in any condition of nudity, as defined in subdivision 22-24A-2(10), or involved in any prohibited sexual act, as defined in subdivision 22-24A-2(17). Any violation of this section constitutes the offense of juvenile sexting, which is a Class 1 misdemeanor.
Source: SL 2012, ch 148, § 1; SL 2024, ch 87, § 14.
26-10-34. Defenses to juvenile sexting.
It is an affirmative defense to the offense of juvenile sexting that the minor has not solicited the visual depiction, that the minor does not subsequently distribute, present, transmit, post, print, disseminate, or exchange the visual depiction, and that the minor deletes or destroys the visual depiction within a reasonable time after receipt. It is an affirmative defense to the offense of juvenile sexting that the visual depiction is of a single minor, created by that minor, who does not subsequently distribute, present, transmit, post, print, disseminate, or exchange the visual depiction.
Source: SL 2012, ch 148, § 2.
26-10-35. Depiction of person charged not a defense to juvenile sexting.
It is not a defense to the offense of juvenile sexting that the visual depiction is of the person charged.
Source: SL 2012, ch 148, § 3.
26-11-1
Proceedings on offense for which child not subject to delinquency proceedings--Prosecution as adult--Detention in adult jail or lockup.
26-11-1.1
Strip-search for curfew violation prohibited.
26-11-2
Child arrested for other offenses taken before circuit court--Transfer by magistrate
to circuit court--Disposition as if on delinquency petition.
26-11-3
Circuit court direction to hold child in custody until felony charge filed.
26-11-3.1
Request for transfer hearing by delinquent child charged with felony.
26-11-4
Criminal proceedings against child charged with a felony permitted by circuit court--Transfer hearing--Factors considered--Order holding child--Retention of
jurisdiction by court.
26-11-5
Repealed.
26-11-5.1
Provision for notice to school officials and parent or guardian by law enforcement
agency where student suspected of violating state drug or alcohol laws or of
threatening violence.
26-11-5.2
Provision for notice to school officials by judicial system where student convicted
of certain crimes.
26-11-5.3
Disclosure of student's adjudication or conviction governed by federal law--Conditions.
26-11-6 to 26-11-9.
Repealed.
26-11-10
Repealed.
26-11-1. Proceedings on offense for which child not subject to delinquency proceedings--Prosecution as adult--Detention in adult jail or lockup.
If any child under the age of eighteen years is arrested, with or without a warrant, for a violation of any law or municipal ordinance for which the child is not subject to proceedings as a child in need of supervision as defined in § 26-8B-2 or a delinquent child as defined in 26-8C-2 or for a violation of subdivision 34-46-2(2), the child shall be brought before the judge of a court having jurisdiction over the offense and proceedings shall be conducted as though the child were eighteen years of age or older.
A child under the age of eighteen years, subject to proceedings pursuant to this section and accused of a Class 2 misdemeanor, may be held in or sentenced to a detention or temporary care facility for up to seven days if sight and sound separated from adult prisoners. No child may be held in or sentenced to a detention facility for a violation of subdivision 34-46-2(2).
A child under the age of eighteen years, subject to proceedings pursuant to this section and accused of a Class 1 misdemeanor, may be held in or sentenced to a detention or temporary care facility for up to thirty days if sight and sound separated from adult prisoners.
Source: SDC 1939, § 43.0318 as added by SL 1961, ch 214, § 1; SL 1973, ch 169, § 2; SL 1991, ch 217, § 173; SL 1996, ch 179, § 3; SL 1997, ch 158, § 5; SL 1998, ch 215, § 4; SL 2003, ch 149, § 8.
26-11-1.1. Strip-search for curfew violation prohibited.
No person under the age of eighteen detained solely for a curfew violation may be strip-searched.
Source: SL 2000, ch 125, § 1.
26-11-2. Child arrested for other offenses taken before circuit court--Transfer by magistrate to circuit court--Disposition as if on delinquency petition.
If the arrest is for an offense for which the child is subject to proceedings as a delinquent child as defined in § 26-8C-2, the child shall be taken directly before the circuit court. If the child is taken before a magistrate upon a complaint sworn out in that court or for any other reason, the magistrate shall transfer the case to the circuit court and the officer in charge of the child shall take the child before the circuit court. The circuit court may proceed to hear and dispose of the case as if the petition had originally been filed in that court as provided in chapter 26-8C.
Source: SDC 1939, § 43.0318; SL 1961, ch 214, § 1; SL 1991, ch 217, § 174.
26-11-3. Circuit court direction to hold child in custody until felony charge filed.
When necessary, in cases where a delinquency charge against a child would otherwise constitute a felony, the circuit court may direct that such child be kept in proper custody until an information or complaint may be filed against him as in other cases under the criminal laws of this state.
Source: SDC 1939, § 43.0318; SL 1961, ch 214, § 1.
26-11-3.1. Request for transfer hearing by delinquent child charged with felony.
Any delinquent child sixteen years of age or older against whom Class A, Class B, Class C, Class 1, or Class 2 felony charges have been filed shall be tried in circuit court as an adult. However, the child may request a transfer hearing which shall be conducted pursuant to § 26-11-4 to determine if it is in the best interest of the public that the child be tried in circuit court as an adult. In such a transfer hearing, there is a rebuttable presumption that it is in the best interest of the public that any child, sixteen years of age or older, who is charged with a Class A, Class B, Class C, Class 1, or Class 2 felony, shall be tried as an adult.
Source: SL 1997, ch 163, § 1; SL 2006, ch 117, § 5.
26-11-4. Criminal proceedings against child charged with a felony permitted by circuit court--Transfer hearing--Factors considered--Order holding child--Retention of jurisdiction by court.
Except as provided in § 26-11-3.1, the circuit court may, in any case of a delinquent child against whom criminal felony charges have been filed, after transfer hearing, permit such child to be proceeded against in accordance with the laws that may be in force in this state governing the commission of crimes. In such cases the petition filed under chapter 26-7A shall be dismissed. The hearing shall be conducted as provided by this section.
At the transfer hearing, the court shall consider only whether it is contrary to the best interest of the child and of the public to retain jurisdiction over the child.
The following factors may be considered by the court in determining whether a child should be transferred:
(1) The seriousness of the alleged felony offense to the community and whether protection of the community requires waiver;
(2) Whether the alleged felony offense was committed in an aggressive, violent, premeditated, or willful manner;
(3) Whether the alleged felony offense was against persons or property with greater weight being given to offenses against persons;
(4) The prosecutive merit of the complaint. The state is not required to establish probable cause to show prosecutive merit;
(5) The desirability of trial and disposition of the entire felony offense in one proceeding if the child's associates in the alleged felony offense are adults;
(6) The record and previous history of the juvenile;
(7) The prospect for adequate protection of the public and the likelihood of reasonable rehabilitation of the juvenile, if the juvenile is found to have committed the alleged felony offense, by the use of procedures, services, and facilities currently available to the juvenile court.
Written reports and other materials relating to the child's mental, physical, and social history may be considered by the court, if the person who prepared the report and other material appears and is subject to both direct and cross-examination.
If the court finds that a child should be held for criminal proceedings in a court of competent jurisdiction, the court shall enter an order certifying to that effect. The order shall contain findings of fact upon which the court's decision is based. The findings may not be set aside upon review unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses. If an order of certification is made, the jurisdiction of the original court as to the child concerned is terminated. However, the court to which the proceedings are transferred may require the original court to hold the child in detention pending proceedings in that court.
If the court finds that it is in the best interest of the child and of the public for the court to retain jurisdiction, it shall proceed with the adjudicatory hearing. If the court to which any proceeding regarding a delinquent child is transferred finds that it is in the best interest of the child and of the public for the court to retain jurisdiction, the finding is definitive, during the balance of the child's minority, as to the subsequent commission of any crime, petty offense, or municipal ordinance violation, and the child may no longer be considered a child for the purposes of this chapter. However, the finding is not definitive, if the delinquent child has been found not guilty of the offense for which the original transfer was ordered.
Source: SDC 1939, § 43.0313; SL 1968, ch 164, § 10; SL 1971, ch 166, § 6; SL 1977, ch 210; SL 1994, ch 219, § 9; SL 1994, ch 221; SL 1997, ch 163, § 2.
26-11-5.1. Provision for notice to school officials and parent or guardian by law enforcement agency where student suspected of violating state drug or alcohol laws or of threatening violence.
Notwithstanding any other provision of law, a law enforcement agency may provide notice of an incident within its jurisdiction to public or nonpublic school officials and to the parent or guardian of a school student if the incident is one in which the agency has probable cause to believe the school student has violated any provision of state law involving alcohol, illegal drugs, firearms, or bomb threats, or has made any threat of violence relating to any school or its students, employees, or property. However, if there is a prolonged criminal investigation and revealing information would jeopardize a successful conclusion to the case, the law enforcement agency may provide the notice at some later appropriate time. The notice shall be in writing.
Source: SL 1996, ch 120, § 1; SL 2000, ch 126, § 1.
26-11-5.2. Provision for notice to school officials by judicial system where student convicted of certain crimes.
Within ten days after disposition of any judicial proceeding in which a juvenile is adjudicated or convicted of committing, attempting to commit, or conspiring to commit murder, manslaughter, rape, aggravated assault, riot, robbery, burglary in the first or second degree, arson, kidnapping, felony sexual contact as defined in § 22-22-7, any felony offense pursuant to chapter 22-14, or any felony offense pursuant to chapter 22-14A, the Unified Judicial System shall give notice to the chief administrator of the school in which the juvenile is enrolled. The notice shall include a description of the offense committed and the disposition by the court and may include a description of the acts constituting the offense.
Source: SL 2001, ch 146, § 1.
26-11-5.3. Disclosure of student's adjudication or conviction governed by federal law--Conditions.
The information disclosed pursuant to § 26-11-5.2 is governed by the federal Family Educational Rights and Privacy Act (FERPA) as implemented in 34 CFR part 99, as effective on January 1, 2001. The Unified Judicial System shall disclose the information to the chief administrator of a nonpublic school only upon request and upon the execution of an agreement to follow the provisions of the federal Family Educational Rights and Privacy Act (FERPA) with regard to the information.
Source: SL 2001, ch 146, § 2.
CHAPTER 26-11A
JUVENILE CORRECTIONAL FACILITIES AND PROGRAMS
26-11A-1 Establishment, maintenance, and operation of juvenile correctional facilities and programs.
26-11A-1.1 26-11A-1.1. Repealed by SL 2004, ch 168, § 72
26-11A-1.2 26-11A-1.2. Repealed by SL 2002, ch 132, § 1
26-11A-1.3 26-11A-1.3. Repealed by SL 2004, ch 168, § 73
26-11A-1.4 Department authorized to lease former state property--Disposition of revenue.
26-11A-2 Acceptance and expenditure of funds--Approval.
26-11A-3 Liability for medical and related services cost for committed juvenile--Securing payment on failure of responsible party to pay.
26-11A-4 Prohibition against court's commitment of juvenile to specific department facility or program.
26-11A-5 Age limit for juvenile within departmental jurisdiction.
26-11A-6 Age limit for placement of child sentenced as adult into juvenile facility--Affect on status.
26-11A-7 Jurisdiction and custody of adjudicated juvenile.
26-11A-8 Extent of security and treatment services for committed juvenile--Placement of juvenile.
26-11A-8.1 Treatment and aftercare plans--Treatment team meetings.
26-11A-9 Transfer of juvenile after initial placement.
26-11A-10 Placement contracts regarding juveniles and other states--Transfer of custody--Effect on juvenile's legal rights.
26-11A-11 Custodian of person of juvenile.
26-11A-12 Aftercare supervision program for juveniles conditionally released--Foster care--Terms, conditions, and duration of aftercare given in writing.
26-11A-13 Failure to comply with terms and conditions of aftercare--Duration of temporary detention or shelter--Violations.
26-11A-14 Temporary detention or shelter hearing--Timing--Orders of hearing officer--Holding of juvenile pending hearing.
26-11A-15 Aftercare revocation--Hearing--Notice--Written statement of allegations--Witnesses and evidence--Representation.
26-11A-16 Finding of violation or frustration of purpose--Continuance of aftercare.
26-11A-17 Release of juvenile for continuance of aftercare.
26-11A-18 Form of hearings.
26-11A-19 Reimbursement of expenses--Procedure.
26-11A-20 Grounds for discharge of juvenile--Department's jurisdiction ends at age twenty-one.
26-11A-20.1 Risk and needs evaluation required for juvenile who is not discharged by age nineteen.
26-11A-21 Restoration of juvenile to custody of parent or guardian--Appointment of new guardian.
26-11A-22 Committing court to receive notice of intent to discharge juvenile--State's attorney to notify any involved victim.
26-11A-23 Use of restraints prohibited--Exceptions--"Restraints" defined.
26-11A-24 Definition of terms.
26-11A-25 Monitor within juvenile corrections system--Primary duty.
26-11A-26 Allegations of abuse within juvenile corrections facilities to be reported to monitor.
26-11A-27 Powers and duties of monitor.
26-11A-27.1 Certification that report of activities of monitor does not disclose juvenile's or other person's identity.
26-11A-28 Monitor to report findings of abuse or neglect.
26-11A-29 26-11A-29. Repealed by SL 2002, ch 133, § 2
26-11A-30 Disclosure of identities of juveniles or others requesting assistance not required--Identity of person reporting to monitor to remain confidential.
26-11A-31 Knowingly hindering actions of monitor as misdemeanor.
26-11A-32 Retaliatory acts against individual who cooperates with monitor prohibited--Violation as misdemeanor.
26-11A-33 Identities of persons or agencies reporting to monitor to remain confidential.
26-11A-33.1 Confidential report of allegations of abuse and neglect within private contracted facilities.
26-11A-34 Records to be provided to the court and Department of Social Services.
26-11A-1. Establishment, maintenance, and operation of juvenile correctional facilities and programs.
The Department of Corrections shall establish, maintain, and operate such correctional facilities and programs as it determines appropriate to provide appropriate custody and care of juveniles committed to the department pursuant to chapters 26-7A, 26-8B, and 26-8C.
Source: SL 1996, ch 172, § 51.
26-11A-1.4. Department authorized to lease former state property--Disposition of revenue.
The Department of Corrections is authorized, pursuant to § 5-2-2.4, to lease the former state training school real and personal property. Any revenue derived from any lease of the former state training school personal property shall be deposited in the state general fund. Any revenue derived from any lease of the former state training school real property shall be deposited with the commissioner of school and public lands and distributed to the Department of Corrections for juvenile programs subject to § 4-8-1.
Source: SL 2002, ch 132, § 2.
26-11A-2. Acceptance and expenditure of funds--Approval.
The Department of Corrections may accept and expend for the purpose of § 26-11A-1, any funds which it may obtain from federal sources, gifts, contributions, or any other source, provided such acceptance and expenditure is approved in accordance with chapter 4-8B.
Source: SL 1996, ch 172, § 52.
26-11A-3. Liability for medical and related services cost for committed juvenile--Securing payment on failure of responsible party to pay.
The parent or parents, guardian, conservator, custodian, or other responsible party is liable for the medical, dental, optical, psychological, and other like services of a juvenile committed to the Department of Corrections. Upon failure to pay, the department may proceed to secure payment of such costs by the parent or parents, guardian, conservator, custodian, or other responsible party through civil judgment.
Source: SL 1996, ch 172, § 53.
26-11A-4. Prohibition against court's commitment of juvenile to specific department facility or program.
The court may not commit a juvenile to a specific department facility or program. No juvenile has any implied right or expectation to be housed in a specific facility, participate in a specific program, or receive specific services.
Source: SL 1996, ch 172, § 54.
26-11A-5. Age limit for juvenile within departmental jurisdiction.
No adjudicated juvenile may remain within the jurisdiction of the Department of Corrections beyond the age of twenty-one years.
Source: SL 1996, ch 172, § 55.
26-11A-6. Age limit for placement of child sentenced as adult into juvenile facility--Affect on status.
A child under the age of eighteen years who has been sentenced as an adult felon to a term of imprisonment in a state correctional facility may be placed in a Department of Corrections juvenile facility by the secretary of corrections. This section does not affect the child's status as an adult offender and inmate of the state correctional facility.
Source: SL 1996, ch 172, § 56; SL 2023, ch 82, § 95.
26-11A-7. Jurisdiction and custody of adjudicated juvenile.
Any adjudicated juvenile committed to the Department of Corrections is at all times within the jurisdiction of the department and considered in the custody of the department until discharged.
Source: SL 1996, ch 172, § 57.
26-11A-8. Extent of security and treatment services for committed juvenile--Placement of juvenile.
If a juvenile is committed to the Department of Corrections, the department shall determine the extent of security and treatment services that are in the best interest of the juvenile and in the best interest of the state. When the department makes its determination, it shall place the juvenile in a juvenile correctional facility under the department's control pursuant to § 1-15-1.4 or a group home, group care center, residential treatment center, or other community-based services, if those community-based services were not provided prior to commitment.
Source: SL 1996, ch 172, § 58; SL 1998, ch 163, § 1; SL 2007, ch 163, § 4.
26-11A-8.1. Treatment and aftercare plans--Treatment team meetings.
For any child in the custody of the Department of Corrections and placed in a residential facility, state-run or private, the department shall participate in a monthly treatment team meeting with the residential facility. The department shall:
(1) Review progress on the treatment plan goals and evaluate the effectiveness of the service;
(2) Determine whether any less restrictive treatment alternative is appropriate and available; and
(3) Develop an aftercare plan designed to facilitate release that identifies release options and timeframes, if appropriate.
Each treatment plan shall be designed to achieve release at the earliest possible time and to maximize the child's development and acquisition of skills that enables the child to successfully transition to community living.
The Department of Corrections shall train department staff on effective participation in treatment team meetings.
Source: SL 2015, ch 152, § 10.
26-11A-9. Transfer of juvenile after initial placement.
After the juvenile's initial placement pursuant to § 26-11A-8, the secretary of corrections may transfer a juvenile to a different Department of Corrections facility or program, the Human Services Center, detention, shelter, or a group home, group care center, residential treatment center, or other community-based services.
Source: SL 1996, ch 172, § 59; SL 2007, ch 163, § 5.
26-11A-10. Placement contracts regarding juveniles and other states--Transfer of custody--Effect on juvenile's legal rights.
The Department of Corrections may contract and place juveniles with appropriate agencies or departments of other states. Juveniles under the jurisdiction of the Department of Corrections who are in the custody of an agency or department of another state may be removed therefrom for change of placement. Placement of a juvenile in another state does not deprive the child of any legal rights the juvenile would have if placed in this state.
Source: SL 1996, ch 172, § 60.
26-11A-11. Custodian of person of juvenile.
The secretary of corrections, as guardian of all juveniles committed to the department, may appoint the person in charge of the public or private facility or program, in which the juvenile is placed, as custodian of the person of the child.
Source: SL 1996, ch 172, § 61.
26-11A-12. Aftercare supervision program for juveniles conditionally released--Foster care--Terms, conditions, and duration of aftercare given in writing.
The Department of Corrections may establish an aftercare supervision program to supervise juveniles in the community if they have been conditionally released from a department facility or program, the Human Services Center, detention, shelter, or a group home, group care center, or residential treatment center.
As part of an aftercare supervision program, the department may place a juvenile in foster care, with one or both parents, a guardian, conservator, or a relative of the juvenile or with another suitable person.
The terms, conditions, and duration of aftercare supervision shall be given in writing and fully explained to each juvenile placed on aftercare and a parent or custodian of such juvenile. The Department of Corrections may modify the terms, conditions, and duration of aftercare at any time.
Source: SL 1996, ch 172, § 62.
26-11A-13. Failure to comply with terms and conditions of aftercare--Duration of temporary detention or shelter--Violations.
A juvenile placed on aftercare supervision may be taken into temporary detention or shelter by an authorized employee of the Department of Corrections or a law enforcement officer if the juvenile has failed to comply with the terms and conditions of aftercare or if the purposes and objects of aftercare supervision are not being served.
No juvenile may be held in temporary detention or shelter longer than twenty-four hours, excluding Saturdays, Sundays, and holidays except as authorized pursuant to § 26-11A-14.
No juvenile may be placed in temporary detention or shelter in violation of § 26-7A-26.
Source: SL 1996, ch 172, § 63.
26-11A-14. Temporary detention or shelter hearing--Timing--Orders of hearing officer--Holding of juvenile pending hearing.
A temporary detention or shelter hearing may be conducted by an independent hearing officer to determine if probable cause exists that the juvenile has failed to comply with the terms and conditions of aftercare supervision or that the purposes and objects of aftercare supervision are not being served.
The temporary detention or shelter hearing shall be held within twenty-four hours, excluding Saturdays, Sundays, and holidays of the juvenile being placed in temporary detention or shelter.
The independent hearing officer shall either order that:
(1) Probable cause exists and the juvenile shall be held in temporary detention or shelter or returned to a Department of Corrections juvenile facility pending an aftercare supervision revocation hearing pursuant to §§ 26-11A-15 and 26-11A-16; or
(2) Probable cause does not exist and the juvenile shall be released for continued aftercare supervision.
No juvenile may be held in temporary detention or shelter or at a Department of Corrections juvenile facility pending an aftercare supervision revocation hearing for more than thirty days.
Source: SL 1996, ch 172, § 64.
26-11A-15. Aftercare revocation--Hearing--Notice--Written statement of allegations--Witnesses and evidence--Representation.
If the independent hearing officer finds probable cause that the terms and conditions of aftercare have been violated by committing an act subject to transfer proceedings pursuant to § 26-11-3.1, 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 that the juvenile presents a significant risk of physical harm to another person and has committed a new law violation, an aftercare revocation hearing shall be held before a member of the Board of Pardons and Paroles created in § 24-13-1 within thirty days of the temporary detention or shelter hearing. 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. The juvenile, with the consent of a parent, guardian, or custodian, has the right to waive this hearing at any time after the juvenile is detained and after advisement that waiver of the right to appear before the Board of Pardons and Paroles may result in the juvenile being returned to placement.
If the hearing officer does not find probable cause that the terms and conditions of aftercare have been violated by committing an act subject to transfer proceedings pursuant to § 26-11-3.1, 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 that the juvenile presents a significant and likely risk of physical harm to another person and has committed a new law violation, the juvenile shall be returned to aftercare or released.
The member of the board shall set the aftercare revocation hearing and shall give five days notice to the juvenile, to the juvenile's parents, guardian, or custodian, and to any other parties to the hearing.
The juvenile and the juvenile's parents, guardian, or custodian, shall be given a written statement of the allegations against the juvenile.
The juvenile shall have the opportunity to appear in person, present witnesses, or documentary evidence in the juvenile's behalf, and cross-examine witnesses unless the member of the board makes a written determination that doing so is not in the best interests of the juvenile.
The juvenile may be represented by legal counsel at the hearing.
Source: SL 1996, ch 172, § 65; SL 2015, ch 152, § 35, eff. Jan. 1, 2016; SL 2016, ch 146, § 4, eff. Mar. 25, 2016.
26-11A-16. Finding of violation or frustration of purpose--Continuance of aftercare.
If the member of the Board of Pardons and Paroles is satisfied that the terms and conditions of aftercare have been violated or that the purposes and objects of aftercare are not being served:
(1) The juvenile's aftercare supervision may be revoked and the juvenile may be placed in a program or service authorized in § 26-11A-9; or
(2) The juvenile may be released to continue aftercare supervision with or without changing the terms and conditions of the juvenile's aftercare supervision.
If the member of the board is not satisfied that the terms and conditions of aftercare have been violated or that the purposes and objects of aftercare are not being served the member of the board shall release the juvenile to continue aftercare supervision.
Source: SL 1996, ch 172, § 66.
26-11A-17. Release of juvenile for continuance of aftercare.
The Department of Corrections may at any time release a juvenile held in temporary detention or shelter pursuant to §§ 26-11A-13 and 26-11A-14 or a juvenile returned to a Department of Corrections juvenile facility pursuant to § 26-11A-16 to continue aftercare supervision.
Source: SL 1996, ch 172, § 67.
26-11A-18. Form of hearings.
Hearings held pursuant to §§ 26-11A-14 to 26-11A-16, inclusive, may be held telephonically or by teleconference. Evidence may be transmitted via facsimile or other electronic document transfer.
Source: SL 1996, ch 172, § 68.
26-11A-19. Reimbursement of expenses--Procedure.
The state shall reimburse the county of this state for expenses the county incurs for the detention of a juvenile pursuant to §§ 26-11A-13 and 26-11A-14. Upon receipt of the bill, the state shall make reimbursement within thirty days. No county may be reimbursed by the state for costs incurred from detaining a juvenile held for criminal charges unrelated to the juveniles current adjudication and commitment. The county shall be reimbursed by the state auditor upon vouchers approved by the secretary of corrections.
Source: SL 1996, ch 172, § 69.
26-11A-20. Grounds for discharge of juvenile--Department's jurisdiction ends at age twenty-one.
The secretary of corrections may discharge a juvenile from the Department of Corrections upon the following:
(1) As a reward for good conduct and upon satisfactory evidence of reformation;
(2) As a result of a conviction for a new crime as an adult, if the juvenile is placed on adult probation or sentenced to the county jail or a state correctional facility;
(3) If the juvenile, upon reaching the age of majority, lives outside the jurisdiction of the State of South Dakota and the interstate compact on juveniles is not available due to the juvenile's age or circumstances; or
(4) If the juvenile is on aftercare and has a suitable placement, and a discharge is determined to be in the best interests of the juvenile.
No adjudicated juvenile may remain within the jurisdiction of the Department of Corrections beyond the age of twenty-one years. The discharge of a juvenile from the Department of Corrections constitutes a complete release from all penalties, excluding unpaid fines, fees, or restitution.
Source: SL 1996, ch 172, § 73; SL 2007, ch 163, § 6; SL 2023, ch 82, § 96.
26-11A-20.1. Risk and needs evaluation required for juvenile who is not discharged by age nineteen.
A risk and needs evaluation shall be conducted for any juvenile under the jurisdiction of the department who reaches the age of nineteen years who has not been discharged pursuant to § 26-11A-20. The evaluation shall focus on the amount of progress made while under the jurisdiction of the department, the ongoing needs of the juvenile, and what risks the juvenile would present to the community or self if discharged at that point. Additionally, the evaluation shall identify recommendations regarding treatment and transition services that will prepare the juvenile for discharge from the jurisdiction of the department. The secretary shall initiate any actions necessary, including referral or civil commitment to service systems for the mentally ill or developmentally disabled, to ensure the treatment needs of the juvenile and the safety interests of the public are best served.
Source: SL 2007, ch 163, § 7.
26-11A-21. Restoration of juvenile to custody of parent or guardian--Appointment of new guardian.
Upon discharge of a juvenile from the Department of Corrections, the child shall be restored to the custody of either or both of the juvenile's parents or restored to the guardian at the time of disposition. The Department of Corrections may, upon a proper showing, apply to the court for the appointment of a new guardian at the time of discharge from the department.
Source: SL 1996, ch 172, § 74.
26-11A-22. Committing court to receive notice of intent to discharge juvenile--State's attorney to notify any involved victim.
Fifteen days before conditionally releasing a juvenile to an aftercare supervision program or discharging a juvenile from the Department of Corrections, the secretary of corrections shall send notice of intent to conditionally release or discharge the juvenile to the committing court and to the prosecuting state's attorney. The state's attorney shall then notify any victim of a crime of violence who was involved in the adjudication of the juvenile of the intended discharge of the child. The notice shall be mailed to the last known mailing address of the victim.
Source: SL 1996, ch 172, § 75.
26-11A-23. Use of restraints prohibited--Exceptions--"Restraints" defined.
No agent or employee of the Department of Corrections may use or employ restraints upon a juvenile committed to the Department of Corrections except:
(1) To prevent imminent bodily harm;
(2) As a precaution against escape or to prevent an escape;
(3) To prevent imminent property damages; or
(4) When reasonable under emergency circumstances.
For purposes of this section, restraints are handcuffs, legcuffs, restraint belts, and tethers made of fabric, metal, plastic, or leather; restraint boards, restraint chairs, swaddle beds, and mechanisms to secure cuffs to a bed, restraint board, or chair.
Source: SL 2000, ch 127, § 1.
26-11A-24. Definition of terms.
Terms used in this chapter mean:
(1) "Abuse," any act or failure to act by an employee of a juvenile corrections facility or by a contract person or entity providing services to a juvenile corrections facility, which act was performed or was failed to be performed, knowingly, recklessly, or intentionally, and which caused, or may have caused, injury or death to an individual in the custody or care of a juvenile corrections facility;
(2) "Monitor," the person or entity designated by the Governor to protect the legal rights of individuals in the custody or care of juvenile corrections facilities;
(3) "Juvenile corrections facility," all juvenile correctional facilities established and maintained in accordance with § 26-11A-1;
(4) "Individual in the custody or care of a juvenile corrections facility," an individual who:
(a) Is in the process of being admitted to a juvenile corrections facility, including an individual who is being transported to such a facility; or
(b) Is involuntarily confined in a juvenile corrections facility;
(5) "Neglect," a negligent act or omission by any individual responsible for providing custody, care, or services in a juvenile corrections facility which caused or may have caused injury or death to an individual in the care or custody of a juvenile corrections facility or which placed such individual at undue risk of injury or death;
(6) "Records," reports prepared or received by any staff of a juvenile corrections facility, or reports prepared by an entity or staff person charged with investigating reports of incidents of abuse or neglect, injury or death occurring at such facility that describes incidents of abuse, neglect, injury, or death occurring at such facility and the steps taken to investigate such incident.
Source: SL 2000, ch 128, § 1.
26-11A-25. Monitor within juvenile corrections system--Primary duty.
The Governor may designate a person or entity to serve as the monitor and whose primary responsibility is to protect the rights of persons in the custody or care of juvenile corrections facilities. The person or entity shall be independent of the Department of Corrections and shall be administered by the Department of Human Services, office of the secretary.
Source: SL 2000, ch 128, § 2; SL 2017, ch 119, § 1.
26-11A-26. Allegations of abuse within juvenile corrections facilities to be reported to monitor.
Any allegation of abuse and neglect of individuals within the juvenile corrections facilities received by the Office of the Governor, the Department of Corrections, or other agencies of the executive branch shall be promptly reported in writing to the monitor.
Source: SL 2000, ch 128, § 3.
26-11A-27. Powers and duties of monitor.
The monitor created in § 26-11A-25 shall:
(1) Investigate incidents of abuse or neglect of such individuals within the juvenile corrections facilities, if the incidents are reported to the monitor or if there is reasonable suspicion to believe that the incidents occurred;
(2) Access any individual in the custody or care of juvenile corrections facilities and any employee in the employ of the State of South Dakota or any of its political subdivisions;
(3) Access any records of or relating to any individual in the custody or care of juvenile facilities;
(4) Provide a semi-annual report to the Governor, the Legislature, the Corrections Commission established by § 1-15-1.13, the secretary of the Department of Human Services, and the secretary of the Department of Corrections. The report shall contain the activities of the monitor for the six-month period immediately prior to the report. Activities shall reflect the number of referrals to the monitor, the number of investigations completed, a brief description of any investigation that resulted in a finding of abuse or neglect, and a summary of other activities performed by the monitor;
(5) Provide training and assistance to employees of the Department of Corrections in areas within the scope of the monitor's position;
(6) Review Department of Corrections' policies dealing with juvenile's rights to ensure compliance with federal and state laws, rules, and policy;
(7) Provide reasonable notification of the existence and role of the monitor to all individuals in the custody or care of a juvenile corrections facility and the custodial parent or guardian;
(8) Submit a confidential addendum to each semiannual report to the Government Operations and Audit committee created in § 2-6-2, the Governor, the secretary of the Department of Human Services, and the secretary of the Department of Corrections. This addendum shall contain a description of each case investigated, the specific findings and recommendations of the juvenile corrections monitor, and the Department of Corrections' response to the recommendations.
Source: SL 2000, ch 128, § 4; SL 2002, ch 133, § 1; SL 2007, ch 168, § 2.
26-11A-27.1. Certification that report of activities of monitor does not disclose juvenile's or other person's identity.
Prior to the release of the semi-annual report of the monitor as provided for in subdivision 26-11A-27(4), the attorney general shall certify that that report does not disclose the identity of any juvenile or other person in violation of the provisions of § 26-11A-30 or 26-11A-33. Upon such certification, the monitor's semi-annual report is deemed an open record.
Source: SL 2007, ch 168, § 1.
26-11A-28. Monitor to report findings of abuse or neglect.
It shall be the responsibility of the monitor to report immediately, in writing, any findings of abuse or neglect in a juvenile corrections facility to the secretary of the Department of Corrections, the Government Operations and Audit Committee created in § 2-6-2, and the Governor, and to state in the report the facts found by the monitor and the names of any individuals who perpetrated the abuse or neglect.
Source: SL 2000, ch 128, § 5.
26-11A-30. Disclosure of identities of juveniles or others requesting assistance not required--Identity of person reporting to monitor to remain confidential.
For purposes of any audit, report, evaluation, or public testimony that may be permitted or required under §§ 26-11A-24 to 26-11A-33, inclusive, no disclosure of the identity of, or any other personally identifiable information related to, any juvenile or any individual requesting assistance under §§ 26-11A-24 to 26-11A-33, inclusive, shall be required. The identity of the person making a report to the monitor shall be kept confidential.
Source: SL 2000, ch 128, § 7.
26-11A-31. Knowingly hindering actions of monitor as misdemeanor.
A person who knowingly hinders the lawful actions of the monitor is guilty of a Class 1 misdemeanor.
Source: SL 2000, ch 128, § 8.
26-11A-32. Retaliatory acts against individual who cooperates with monitor prohibited--Violation as misdemeanor.
No state agency nor any individual acting for a state agency may take any adverse action against an individual in retaliation because the individual cooperated with or provided information to the monitor. A violation of this section is a Class 1 misdemeanor.
Source: SL 2000, ch 128, § 9.
26-11A-33. Identities of persons or agencies reporting to monitor to remain confidential.
The identity of the juvenile and of any person or agency making a report to the monitor shall be kept confidential.
Source: SL 2000, ch 128, § 10.
26-11A-33.1. Confidential report of allegations of abuse and neglect within private contracted facilities.
The secretary of the Department of Corrections shall compile a confidential report of all allegations of abuse and neglect of individuals under the jurisdiction of the Department of Corrections within private contracted facilities. The secretary shall provide the report to the Government Operations and Audit Committee no later than July thirty-first of each calendar year.
Source: SL 2017, ch 119, § 2; SL 2023, ch 89, § 1.
26-11A-34. Records to be provided to the court and Department of Social Services.
File material concerning a child under the jurisdiction of the Department of Corrections shall be provided, upon request, to the Department of Social Services for the purposes of developing family service agreements and dispositional recommendations and to the court for use at the disposition.
Source: SL 2007, ch 166, § 3.
26-12-1 to 26-12-14. Repealed.
26-12-15
Interstate Compact on Juveniles continued in force--Text of compact.
26-12-15. Interstate Compact on Juveniles continued in force--Text of compact.
There continues in force a compact between this state and any other state or states legally joining therein in the form substantially as follows:
INTERSTATE COMPACT ON JUVENILES
ARTICLE I, PURPOSE
The compacting states to this Interstate Compact recognize that each state is responsible for the proper supervision or return of juveniles, delinquents, and status offenders who are on probation or parole and who have absconded, escaped, or run away from supervision and control and in so doing have endangered their own safety and the safety of others. The compacting states also recognize that each state is responsible for the safe return of juveniles who have run away from home and in doing so have left their state of residence. The compacting states also recognize that Congress, by enacting the Crime Control Act, 4 U.S.C. Section 112 (1965), has authorized and encouraged compacts for cooperative efforts and mutual assistance in the prevention of crime. It is the purpose of this compact, through means of joint and cooperative action among the compacting states: to ensure that the adjudicated juveniles and status offenders subject to this compact are provided adequate supervision and services in the receiving state as ordered by the adjudicating judge or parole authority in the sending state; to ensure that the public safety interests of the citizens, including the victims of juvenile offenders, in both the sending and receiving states are adequately protected; to return juveniles who have run away, absconded, or escaped from supervision or control or have been accused of an offense to the state requesting their return; to make contracts for the cooperative institutionalization in public facilities in member states for delinquent youth needing special services; to provide for the effective tracking and supervision of juveniles.
In addition, this compact will: equitably allocate the costs, benefits, and obligations of the compacting states; establish procedures to manage the movement between states of juvenile offenders released to the community under the jurisdiction of courts, juvenile departments, or any other criminal or juvenile justice agency which has jurisdiction over juvenile offenders; ensure immediate notice to jurisdictions where defined offenders are authorized to travel or to relocate across the state lines; establish procedures to resolve pending charges (detainers) against juvenile offenders prior to transfer or release to the community under the terms of this compact; establish a system of uniform data collection on information pertaining to juveniles subject to this compact that allows access by authorized juvenile justice and criminal justice officials, and regular reporting of compact activities to heads of state executive, judicial, and legislative branches and juvenile and criminal justice administrators; monitor compliance with rules governing interstate movement of juveniles and initiate interventions to address and correct noncompliance; to coordinate training and education regarding the regulation of interstate movement of juveniles for officials involved in such activity; and coordinate the implementation and operation of the compact with the Interstate Compact for the Placement of Children, the Interstate Compact for Adult Offender Supervision, and other compacts affecting juveniles particularly in those cases where concurrent or overlapping supervision issues arise.
It is the policy of the compacting states that the activities conducted by the Interstate Commission created herein are the formation of public policies and therefore are public business. Furthermore,the compacting states shall cooperate and observe their individual and collective duties and responsibilities for the prompt return and acceptance of juveniles subject to the provisions of this compact. The provisions of this compact shall be reasonably and liberally construed to accomplish the purposes and policies of the compact.
ARTICLE II, DEFINITIONS
As used in this compact, unless the context clearly require a different construction:
(1) "By-laws" means those by-laws established by the Interstate Commission for its governance, or for directing or controlling its actions or conduct;
(2) "Compact administrator" means the individual in each compacting state appointed pursuant to the terms of this compact, responsible for the administration and management of the state's supervision and transfer of juveniles subject to the terms of this compact, the rules adopted by the Interstate Commission and policies adopted by the state council under this compact;
(3) "Compacting state" means any state that has enacted the enabling legislation for this compact;
(4) "Commissioner" means the voting representative of each compacting state appointed pursuant to Article III of this compact;
(5) "Court" means any court having jurisdiction over delinquent, neglected, or dependent children;
(6) "Deputy compact administrator" means the individual, if any, in each compacting state appointed to act on behalf of a compact administrator pursuant to the terms of this compact responsible for the administration and management of the state's supervision and transfer of juveniles subject to the terms of this compact, the rules adopted by the Interstate Commission and policies adopted by the state council under this compact;
(7) "Interstate Commission" means the Interstate Commission for Juveniles created by Article III of this compact;
(8) "Juvenile" means any person defined as a juvenile in any member state or by the rules of the Interstate Commission, including
(a) Accused delinquent--a person charged with an offense that, if committed by an adult, would be a criminal offense;
(b) Adjudicated delinquent--a person found to have committed an offense that, if committed by an adult, would be a criminal offense;
(c) Accused status offender--a person charged with an offense that would not be a criminal offense if committed by an adult;
(d) Adjudicated status offender--a person found to have committed an offense that would not be a criminal offense if committed by an adult; and
(e) Nonoffender--a person in need of supervision who has not been accused or adjudicated a status offender or delinquent.
(9) "Noncompacting state" means any state that has not enacted the enabling legislation for this compact;
(10) "Probation or Parole" means any kind of supervision or conditional release of juveniles authorized under the laws of the compacting states;
(11) "Rule" means a written statement by the Interstate Commission promulgated pursuant to Article VI of this compact that is of general applicability, implements, interprets, or prescribes a policy or provision of the compact, or an organizational, procedural, or practice requirement of the commission, and has the force and effect of statutory law in a compacting state, and includes the amendment, repeal, or suspension of an existing rule;
(12) "State" means a state of the United States, the District of Columbia (or its designee), the Commonwealth of Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, and the Northern Marianas Islands.
ARTICLE III, INTERSTATE COMMISSION FOR JUVENILES
The compacting states hereby create the Interstate Commission for Juveniles. The commission shall be a body corporate and joint agency of the compacting states. The commission shall have all the responsibilities, powers, and duties set forth herein, and such additional powers as may be conferred upon it by subsequent action of the respective legislatures of the compacting states in accordance with the terms of this compact.
The Interstate Commission shall consist of commissioners appointed by the appropriate appointing authority in each state pursuant to the rules and requirements of each compacting state and in consultation with the State Council for Interstate Juvenile Supervision created hereunder. The commissioner shall be the compact administrator, deputy compact administrator, or designee from that state who shall serve on the Interstate Commission in such capacity under or pursuant to the applicable law of the compacting state. The Governor may designate the director of court services for the Unified Judicial System to be the compact administrator, who, acting jointly with like officers of other party states, shall promulgate rules to carry out more effectively the terms of the compact.He shall serve as compact administrator subject to the pleasure of the Governor.
In addition to the commissioners who are the voting representatives of each state, the Interstate Commission shall include individuals who are not commissioners, but who are members of interested organizations. Such noncommissioner members must include a member of the national organizations of governors, legislators, state chief justices, attorneys general, Interstate Compact for Adult Offender Supervision, Interstate Compact for the Placement of Children, juvenile justice and juvenile corrections officials, and crime victims. All noncommissioner members of the Interstate Commission shall be ex-officio (nonvoting) members, including members of other national organizations, in such numbers as shall be determined by the commission.
Each compacting state represented at any meeting of the commission is entitled to one vote. A majority of the compacting states shall constitute a quorum for the transaction of business, unless a larger quorum is required by the by-laws of the Interstate Commission.
The commission shall meet at least once each calendar year. The chairperson may call additional meetings and, upon the request of a simple majority of the compacting states, shall call additional meetings. Public notice shall be given of all meetings and meetings shall be open to the public.
The Interstate Commission shall establish an executive committee, which shall include commission officers, members, and others as determined by the by-laws. The executive committee shall have the power to act on behalf of the Interstate Commission during periods when the Interstate Commission is not in session, with the exception of rule making and/or amendment to the compact. The executive committee shall oversee the day-to-day activities of the administration of the compact managed by an executive director and Interstate Commission staff; administer enforcement and compliance with the provisions of the compact, its by-laws and rules, and perform such other duties as directed by the Interstate Commission and set forth in the by-laws.
Each member of the Interstate Commission shall have the right and power to cast a vote to which that compacting state is entitled and to participate in the business and affairs of the Interstate Commission. A member shall vote in person and shall not delegate a vote to another compacting state. However, a commission, in consultation with the state council, shall appoint another authorized representative, in the absence of the commissioner from that state, to cast a vote on behalf of the compacting state at a specified meeting. The by-laws may provide for members' participation in meetings by telephone or other means of telecommunication or electronic communication.
The Interstate Commission's by-laws shall establish conditions and procedures under which the Interstate Commission shall make its information and official records available to the public for inspection or copying. The Interstate Commission may exempt from disclosure any information or official records to the extent they would adversely affect personal privacy rights or proprietary interests.
Public notice shall be given of all meetings and all meetings shall be open to the public, except as set forth in the rules or as otherwise provided in the compact. The Interstate Commission and any of its committees may close a meeting to the public when it determines by two-thirds vote that an open meeting would be likely to:
(1) Relate solely to the Interstate Commission's internal personnel practice and procedures;
(2) Disclose matters specifically exempted from disclosure by statute;
(3) Disclose trade secrets or commercial or financial information which is privileged or confidential;
(4) Involve accusing any person of a crime, or formally censuring any person;
(5) Disclose information of a personal nature where disclosure would constitute a clearly unwarranted invasion of personal privacy;
(6) Disclose investigative records compiled for law enforcement purposes;
(7) Disclose information contained in or related to examination, operating, or condition reports prepared by, or on behalf of or for the use of, the Interstate Commission with respect to a regulated person or entity for the purpose of regulation or supervision of such person or entity;
(8) Disclose information, the premature disclosure of which would significantly endanger the stability of a regulated person or entity; or
(9) Specifically relate to the Interstate Commission's issuance of a subpoena, or its participation in a civil action or other legal proceeding.
For every meeting closed pursuant to this provision, the Interstate Commission's legal counsel shall publicly certify that, in the legal counsel's opinion, the meeting may be closed to the public, and shall reference each relevant exemptive provision. The Interstate Commission shall keep minutes which shall fully and clearly describe all matters discussed in any meeting and shall provide a full and accurate summary of any actions taken, and the reasons therefore, including a description of each of the views expressed on any item and the record of any roll call vote (reflected in the vote of each member on the question). All documents considered in connection with any action shall be identified in such minutes.
The Interstate Commission shall collect standardized data concerning the interstate movement of juveniles as directed through its rules which shall specify the data to be collected, the means of collection and data exchange, and reporting requirements. Such methods of data collection, exchange, and reporting shall insofar as is reasonably possible conform to up-to-date technology and coordinate its information functions with the appropriate repository of records.
ARTICLE IV, POWERS AND DUTIES OF THE INTERSTATE COMMISSION
The commission shall have the following powers and duties:
(1) To provide for dispute resolution among compacting states;
(2) To promulgate rules to effect the purposes and obligations as enumerated in this compact,which shall have the force and effect of statutory law and shall be binding in the compacting states to the extent and in the manner provided in this compact;
(3) To oversee, supervise, and coordinate the interstate movement of juveniles subject to the terms of this compact and any by-laws adopted and rules promulgated by the Interstate Commission;
(4) To enforce compliance with the compact provisions, the rules promulgated by the Interstate Commission, and the by-laws, using all necessary and proper means, including but not limited to the use of judicial process;
(5) To establish and maintain offices which shall be located within one or more of the compacting states;
(6) To purchase and maintain insurance and bonds;
(7) To borrow, accept, hire, or contract for services of personnel;
(8) To establish and appoint committees and hire staff which it deems necessary for carrying out of its functions including, but not limited to, an executive committee as required by Article III which shall have the power to act on behalf of the Interstate Commission in carrying out its powers and duties hereunder;
(9) To elect or appoint such officers, attorneys, employees, agents, or consultants, and to fix their compensation, define their duties, and determine their qualifications; and to establish the Interstate Commission's personnel policies and programs relating to, inter alia, conflicts of interest, rates of compensation, and qualifications of personnel;
(10) To accept any and all donations and grants of money, equipment, supplies, materials, and services, and to receive, utilize, and dispose of it;
(11) To lease, purchase, accept contributions or donations of, or otherwise to own, hold, improve, or use any property, real, personal, or mixed;
(12) To sell, convey, mortgage, pledge, lease, exchange, abandon, or otherwise dispose of any property, real, personal, or mixed;
(13) To establish a budget and make expenditures and levy dues as provided in Article VIII of this compact;
(14) To sue and be sued;
(15) To adopt a seal and by-laws governing the management and operation of the Interstate Commission;
(16) To perform such functions as may be necessary or appropriate to achieve the purposes of this compact;
(17) To report annually to the legislatures, governors, judiciary, and state councils of the compacting states concerning the activities of the Interstate Commission during the preceding year. Such reports shall also include any recommendations that may have been adopted by the Interstate Commission;
(18) To coordinate education, training, and public awareness regarding the interstate movement of juveniles for officials involved in such activity;
(19) To establish uniform standards for reporting, collecting, and exchanging of data;
(20) The Interstate Commission shall maintain its corporate books and records in accordance with the by-laws.
ARTICLE V, ORGANIZATION AND OPERATION OF THE INTERSTATE COMMISSION
Section A. By-laws
The Interstate Commission shall, by a majority of the members present and voting, within twelve months after the first Interstate Commission meeting, adopt by-laws to govern its conduct as maybe necessary or appropriate to carry out the purposes of the compact, including, but not limited to:
(1) Establishing the fiscal year of the Interstate Commission;
(2) Establishing an executive committee and such other committees as may be necessary;
(3) Providing for the establishment of committees governing any general or specific delegation of any authority or function of the Interstate Commission;
(4) Providing reasonable procedures for calling and conducting meetings of the Interstate Commission, and ensuring reasonable notice of each such meeting;
(5) Establishing the titles and responsibilities of the officers of the Interstate Commission;
(6) Providing a mechanism for concluding the operations of the Interstate Commission and the return of any surplus funds that may exist upon the termination of the compact after the payment and/or reserving of all of its debts and obligations;
(7) Providing "start-up" rules for initial administration of the compact; and
(8) Establishing standards and procedures for compliance and technical assistance in carrying out the compact.
Section B. Officers and Staff
The Interstate Commission shall, by a majority of the members, elect annually from among its members a chairperson and a vice chairperson, each of whom shall have such authority and duties as may be specified in the by-laws. The chairperson or, in the chairperson's absence or disability, the vice chairperson shall preside at all meetings of the Interstate Commission. The officers so elected shall serve without compensation or remuneration from the Interstate Commission; provided that,subject to the availability of budgeted funds, the officers shall be reimbursed for any ordinary and necessary costs and expenses incurred by them in the performance of their duties and responsibilities as officers of the Interstate Commission.
The Interstate Commission shall, through its executive committee, appoint or retain an executive director for such period, upon such terms and conditions and for such compensation as the Interstate Commission may deem appropriate. The executive director shall serve as secretary to the Interstate Commission, but shall not be a member and shall hire and supervise such other staff as may be authorized by the Interstate Commission.
Section C. Qualified Immunity, Defense and Indemnification
The Commission's executive director and employee shall be immune from suit and liability, either personally or in their official capacity, for any claim for damage to or loss of property or personal injury or other civil liability caused or arising out of or relating to any actual or alleged act, error, or omission that occurred, or that such person had a reasonable basis for believing occurred within the scope of commission employment, duties, or responsibilities; provided, that any such person shall not be protected from suit or liability from any damage, loss, injury, or liability caused by the intentional or willful and wanton misconduct of any such person.
The liability of any commissioner, or the employee or agent of a commissioner, acting within the scope of such person's employment or duties for acts, errors, or omissions occurring within such person's state may not exceed the limits of liability set forth under the constitution and laws of that state for state officials, employees, and agents. Nothing in this subsection shall be construed to protect any such person from suit or liability for any damage, loss, injury, or liability caused by the intentional or willful and wanton misconduct of any such person.
The Interstate Commission shall defend the executive director or the employees or representatives of the Interstate Commission and, subject to the approval of the attorney general of the state represented by any commissioner of a compacting state, shall defend such commissioner or the commissioner's representatives or employees in any civil action seeking to impose liability arising out of any actual or alleged act, error, or omission that occurred within the scope of Interstate Commission employment, duties, or responsibilities, or that the defendant had a reasonable basis for believing occurred within the scope of Interstate Commission employment, duties, or responsibilities, provided that the actual or alleged act, error, or omission did not result from intentional or willful and wanton misconduct on the part of such person.
The Interstate Commission shall indemnify and hold the commissioner of a compacting state, or the commissioner's representatives or employees, or the Interstate Commission's representatives or employees, harmless in the amount of any settlement or judgment obtained against such persons arising out of any actual or alleged act, error, or omission that occurred within the scope of Interstate Commission employment, duties, or responsibilities, or that such persons had a reasonable basis for believing occurred within the scope of the Interstate Commission employment, duties, or responsibilities, provided that the actual or alleged act, error, or omission did not result from intentional or willful and wanton misconduct on the part of such persons.
ARTICLE VI, RULE-MAKING FUNCTIONS OF THE INTERSTATE COMMISSION
The Interstate Commission shall promulgate and publish rules in order to effectively and efficiently achieve the purposes of the compact.
Rule making shall occur pursuant to the criteria set forth in this article and the by-laws and rules adopted pursuant thereto. Such rule making shall substantially conform to the principles of the 'Model State Administrative Procedures Act," 1981 Act, Uniform Laws Annotated, Vol. 15, p. 1(2000), or such other administrative procedures act as the Interstate Commission deems appropriate consistent with due process requirements under the U.S. Constitution as now or hereafter interpreted by the U.S. Supreme Court. All rules and amendments shall become binding as of the date specified,as published with the final version of the rule as approved by the commission.
When promulgating a rule, the Interstate Commission shall, at a minimum:
(1) Publish the proposed rule's entire text stating the reason(s) for that proposed rule;
(2) Allow and invite any and all persons to submit written data, facts, opinions, and arguments, which information shall be added to the record and made publicly available;
(3) Provide an opportunity for an informal hearing if petitioned by ten or more persons;
(4) Promulgate a final rule and its effective date, if appropriate, based on input from state or local officials, or interested parties; and
(5) Allow, not later than sixty days after a rule is promulgated, any interested person to file a petition in the United States District Court for the District of Columbia or in the Federal District Court where the Interstate Commission's principal office is located for judicial review of such rule.
If the court finds that the Interstate Commission's action is not supported by substantial evidence in the rule-making record, the court shall hold the rule unlawful and set it aside. For purposes of this subsection, evidence is substantial if it would be considered substantial evidence under the Model State Administrative Procedures Act.
If a majority of the legislatures of the compacting states rejects a rule, those states may, by enactment of a statute or resolution in the same manner used to adopt the compact, cause that such rule shall have no further force and effect in any compacting state.
The existing rules governing the operation of the Interstate Compact on Juveniles superseded by this section shall be null and void twelve months after the first meeting of the Interstate Commission created hereunder.
Upon determination by the Interstate Commission that a state of emergency exists, it may promulgate an emergency rule which shall become effective immediately upon adoption, provided that the usual rule-making procedures provided hereunder shall be retroactively applied to said rule as soon as reasonably possible, but no later than ninety days after the effective date of the emergency rule.
ARTICLE VII, OVERSIGHT, ENFORCEMENT AND DISPUTE RESOLUTION BY THE INTERSTATE COMMISSION
Section A. Oversight
The Interstate Commission shall oversee the administration and operations of the interstate movement of juveniles subject to this compact in the compacting states and shall monitor such activities being administered in noncompacting states which may significantly affect compacting states.
The courts and executive agencies in each compacting state shall enforce this compact and shall take all actions necessary and appropriate to effectuate the compact's purposes and intent. The provisions of this compact and the rules promulgated hereunder shall be received by all judges, public officers, commissions, and departments of the state government as evidence of the authorized statute and administrative rules. All courts shall take judicial notice of the compact and the rules. In any judicial or administrative proceeding in a compacting state pertaining to the subject matter of this compact which may affect the powers, responsibilities, or actions of the Interstate Commission,it shall be entitled to receive all service of process in any such proceeding, and shall have standing to intervene in the proceeding for all purposes.
Section B. Dispute Resolution.
The compacting states shall report to the Interstate Commission on all issues and activities necessary for the administration of the compact as well as issues and activities pertaining to compliance with the provisions of the compact and its by-laws and rules.
The Interstate Commission shall attempt, upon the request of a compacting state, to resolve any disputes or other issues which are subject to the compact and which may arise among compacting states and between compacting and noncompacting states. The commission shall promulgate a rule providing for both mediation and binding dispute resolution for disputes among the compacting states.
The Interstate Commission, in the reasonable exercise of its discretion, shall enforce the provisions and rules of this compact using any or all means set forth in Article XI of this compact.
ARTICLE VIII, FINANCE
The Interstate Commission shall pay or provide for the payment of the reasonable expenses of its establishment, organization, and ongoing activities.
The Interstate Commission shall levy on and collect an annual assessment from each compacting state to cover the cost of the internal operations and activities of the Interstate Commission and its staff which must be in a total amount sufficient to cover the Interstate Commission's annual budget as approved each year. The aggregate annual assessment amount shall be allocated based upon a formula to be determined by the Interstate Commission, taking into consideration the population of each compacting state and the volume of interstate movement of juveniles in each compacting state and shall promulgate a rule binding upon all compacting states which governs said assessment.
The Interstate Commission shall not incur any obligations of any kind prior to securing the funds adequate to meet the same; nor shall the Interstate Commission pledge the credit of any of the compacting states, except by and with the authority of the compacting state.
The Interstate Commission shall keep accurate accounts of all receipts and disbursements. The receipts and disbursements of the Interstate Commission shall be subject to the audit and accounting procedures established under its by-laws. However, all receipts and disbursements of funds handled by the Interstate Commission shall be audited yearly by a certified or licensed public accountant and the report of the audit shall be included in and become part of the annual report of the Interstate Commission.
ARTICLE IX, THE STATE COUNCIL
Each member state shall create a State Council for Interstate Juvenile Supervision. While each state may determine the membership of its own state council, its membership must include at least one representative from the legislative, judicial, and executive branches of government, victims' groups and the compact administrator, deputy compact administrator, or designee. Each compacting state retains the right to determine the qualifications of the compact administrator or deputy compact administrator. Each state council will advise and may exercise oversight and advocacy concerning that state's participation in Interstate Commission activities and other duties as may be determined by that state, including but not limited to, development of policy concerning operations and procedures of the compact within that state.
ARTICLE X, COMPACTING STATES, EFFECTIVE DATE AND AMENDMENT
Any state, the District of Columbia (or its designee), the Commonwealth of Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, and the Northern Marianas Islands as defined in Article II of this compact is eligible to become a compacting state. The compact shall become effective and binding upon legislative enactment of the compact into law by no less than thirty-five of the states. The initial effective date shall be the later of July 1, 2004, or upon enactment into law by the thirty-fifth jurisdiction. Thereafter it shall become effective and binding as to any other compacting state upon enactment of the compact into law by that state. The governors of nonmember states or their designees shall be invited to participate in the activities of the Interstate Commission on a nonvoting basis prior to adoption of the compact by all states and territories of the United States.
The Interstate Commission may propose amendments to the compact for enactment by the compacting states. No amendment shall become effective and binding upon the Interstate Commission and the compacting states unless and until it is enacted into law by unanimous consent of the compacting states.
ARTICLE XI, WITHDRAWAL, DEFAULT, TERMINATION AND JUDICIAL ENFORCEMENT
Section A. Withdrawal
Once effective, the compact shall continue in force and remain binding upon each and every compacting state; provided that a compacting state may withdraw from the compact by specifically repealing the statute which enacted the compact into law.
The effective date of withdrawal is the effective date of the repeal.
The withdrawing state shall immediately notify the chairperson of the Interstate Commission in writing upon the introduction of legislation repealing this compact in the withdrawing state. The Interstate Commission shall notify the other compacting states of the withdrawing state's intent to withdraw within sixty days of its receipt thereof.
The withdrawing state is responsible for all assessments, obligations, and liabilities incurred through the effective date of withdrawal, including any obligations, the performance of which extend beyond the effective date of withdrawal.
Reinstatement following withdrawal of any compacting state shall occur upon the withdrawing state reenacting the compact or upon such later date as determined by the Interstate Commission.
Section B. Technical Assistance, Fines, Suspension, Termination and Default
If the Interstate Commission determines that any compacting state has at any time defaulted in the performance of any of its obligations or responsibilities under this compact, or the by-laws or duly promulgated rules, the Interstate Commission may impose any or all of the following penalties:
(1) Remedial training and technical assistance as directed by the Interstate Commission;
(2) Alternative Dispute Resolution;
(3) Fines, fees, and costs in such amounts as are deemed reasonable as fixed by the Interstate Commission; and
(4) Suspension or termination of membership in the compact, which shall be imposed only after all other reasonable means of securing compliance under the by-laws and rules have been exhausted and the Interstate Commission has therefore determined that the offending state is in default. Immediate notice of suspension shall be given by the Interstate Commission to the Governor, the Chief Justice or the chief judicial officer of the state,the majority and minority leaders of the defaulting state's legislature, and the state council. The grounds for default include, but are not limited to, failure of a compacting state to perform such obligations or responsibilities imposed upon it by this compact, the by-laws or duly promulgated rules and any other grounds designated in commission by-laws and rules. The Interstate Commission shall immediately notify the defaulting state in writing of the penalty imposed by the Interstate Commission and of the default pending a cure of the default. If the defaulting state fails to cure the default within the time period specified by the commission, the defaulting state shall be terminated from the compact upon an affirmative vote of a majority of the compacting states and all rights, privileges, and benefits conferred by this compact shall be terminated from the effective date of termination.
Within sixty days of the effective date of termination of a defaulting state, the commission shall notify the Governor, the Chief Justice or chief judicial officer, the majority and minority leaders of the defaulting state's legislature, and the state council of such termination.
The defaulting state is responsible for all assessments, obligations, and liabilities incurred through the effective date of termination including any obligations, the performance of which extends beyond the effective date of termination.
The Interstate Commission shall not bear any costs relating to the defaulting state unless otherwise mutually agreed upon in writing between the Interstate Commission and the defaulting state.
Reinstatement following termination of any compacting state requires a reenactment of the compact by the defaulting state and the approval of the Interstate Commission pursuant to the rules.
Section C. Judicial Enforcement
The Interstate Commission may, by majority vote of the members, initiate legal action in the United States District Court for the District of Columbia or, at the discretion of the Interstate Commission, in the federal district where the Interstate Commission has its offices, to enforce compliance with the provisions of the compact, its duly promulgated rules and by-laws, against any compacting state in default. In the event judicial enforcement is necessary, the prevailing party shall be awarded all costs of such litigation including reasonable attorney's fees.
Section D. Dissolution of Compact
The compact dissolves effective upon the date of the withdrawal or default of the compacting state, which reduces membership in the compact to one compacting state.
Upon the dissolution of this compact, the compact becomes null and void and shall be of no further force or effect, and the business and affairs of the Interstate Commission shall be concluded and any surplus funds shall be distributed in accordance with the by-laws.
ARTICLE XII, SEVERABILITY AND CONSTRUCTION
The provisions of this compact shall be severable, and if any phrase, clause, sentence, or provision is deemed unenforceable, the remaining provisions of the compact shall be enforceable.
The provisions of this compact shall be liberally construed to effectuate its purpose.
ARTICLE XIII, BINDING EFFECT OF COMPACT AND OTHER LAWS
Section A. Other Laws.
Nothing herein prevents the enforcement of any other law of a compacting state that is not inconsistent with this compact.
All compacting states' laws other than state Constitutions and other interstate compacts conflicting with this compact are superseded to the extent of the conflict.
Section B. Binding Effect of the Compact
All lawful actions of the Interstate Commission, including all rules and by-laws promulgated by the Interstate Commission, are binding upon the compacting states.
All agreements between the Interstate Commission and the compacting states are binding in accordance with their terms.
Upon the request of a party to a conflict over meaning or interpretation of Interstate Commission actions, and upon a majority vote of the compacting states, the Interstate Commission may issue advisory opinions regarding such meaning or interpretation.
In the event any provision of this compact exceeds the constitutional limits imposed on the legislature of any compacting state, the obligations, duties, powers, or jurisdiction sought to be conferred by such provision upon the Interstate Commission shall be ineffective and such obligations, duties, powers, or jurisdiction shall remain in the compacting state and shall be exercised by the agency thereof to which such obligations, duties, powers, or jurisdiction are delegated by law in effect at the same time this compact becomes effective.
Source: SL 2004, ch 183, § 1, eff. Aug. 26, 2008.
26-13-1
Compact continued--Text.
26-13-2
Department as authority to concur in placement of children.
26-13-3
Department as agency for supervision of children placed.
26-13-4
Executive authority--Administration of compact.
26-13-5
Financial responsibility for child placement.
26-13-6
Supplementary agreements with other states--Approval by commissioner of finance.
26-13-7
Omitted.
26-13-8
Placement of child in another state--Retention of jurisdiction by court.
26-13-9
Visitation, inspection, and supervision requirements deemed met when performed pursuant
to compact.
26-13-1. Compact continued--Text.
The interstate compact on the placement of children is hereby continued in force with all other jurisdictions legally joining therein in the form substantially as follows:
ARTICLE I. PURPOSE AND POLICY
It is the purpose and policy of the party states to cooperate with each other in the interstate placement of children to the end that:
(a) Each child requiring placement shall receive the maximum opportunity to be placed in a suitable environment and with persons or institutions having appropriate qualifications and facilities to provide a necessary and desirable degree and type of care.
(b) The appropriate authorities in a state where a child is to be placed may have full opportunity to ascertain the circumstances of the proposed placement, thereby promoting full compliance with applicable requirements for the protection of the child.
(c) The proper authorities of the state from which the placement is made may obtain the most complete information on the basis of which to evaluate a projected placement before it is made.
(d) Appropriate jurisdictional arrangements for the care of children will be promoted.
ARTICLE II. DEFINITIONS
As used in this compact:
(a) "Child," means a person who, by reason of minority, is legally subject to parental, guardianship, or similar control.
(b) "Sending agency," means a party state, officer, or employee thereof; a subdivision of a party state, or officer or employee thereof; a court of a party state; a person, corporation, association, charitable agency, or other entity which sends, brings, or causes to be sent or brought any child to another party state.
(c) "Receiving state," means the state to which a child is sent, brought or caused to be sent or brought, whether by public authorities or private persons or agencies, and whether for placement with state or local public authorities or for placement with private agencies or persons.
(d) "Placement," means the arrangement for the care of a child in a family free or boarding home or in a child-caring agency or institution but does not include any institution caring for the mentally ill, mentally defective or epileptic or any institution primarily educational in character, and any hospital or other medical facility.
ARTICLE III. CONDITIONS FOR PLACEMENT
(a) No sending agency shall send, bring, or cause to be sent or brought into any other party state any child for placement in foster care or as a preliminary to a possible adoption unless the sending agency shall comply with each and every requirement set forth in this article and with the applicable laws of the receiving state governing the placement of children therein.
(b) Prior to sending, bringing, or causing any child to be sent or brought into a receiving state for placement in foster care or as a preliminary to a possible adoption the sending agency shall furnish the appropriate public authorities in the receiving state written notice of the intention to send, bring, or place the child in the receiving state. The notice shall contain:
(1) The name, date, and place of birth of the child.
(2) The identity and address or addresses of the parents or legal guardian.
(3) The name and address of the person, agency, or institution to or with which the sending agency proposes to send, bring, or place the child.
(4) A full statement of the reasons for such proposed action and evidence of the authority pursuant to which the placement is proposed to be made.
(c) Any public officer or agency in a receiving state which is in receipt of a notice pursuant to paragraph (b) of this article may request of the sending agency, or any other appropriate officer or agency of or in the sending agency's state, and shall be entitled to receive therefrom, such supporting or additional information as it may deem necessary under the circumstances to carry out the purpose and policy of this compact.
(d) The child shall not be sent, brought, or caused to be sent or brought into the receiving state until the appropriate public authorities in the receiving state shall notify the sending agency, in writing, to the effect that the proposed placement does not appear to be contrary to the interests of the child.
ARTICLE IV. PENALTY FOR ILLEGAL PLACEMENT
The sending, bringing, or causing to be sent or brought into any receiving state of a child in violation of the terms of this compact shall constitute a violation of the laws respecting the placement of children of both the state in which the sending agency is located or from which it sends or brings the child and of the receiving state. Such violation may be punished or subjected to penalty in either jurisdiction in accordance with its law. In addition to liability for any such punishment or penalty, any such violation shall constitute full and sufficient grounds for the suspension or revocation of any license, permit, or other legal authorization held by the sending agency which empowers or allows it to place, or care for children.
ARTICLE V. RETENTION OF JURISDICTION
(a) The sending agency shall retain jurisdiction over the child sufficient to determine all matters in relation to the custody, supervision, care, treatment, and disposition of the child which it would have had if the child had remained in the sending agency's state, until the child is adopted, reaches majority, becomes self-supporting, or is discharged with the concurrence of the appropriate authority in the receiving state. Such jurisdiction shall also include the power to effect or cause the return of the child or its transfer to another location and custody pursuant to law. The sending agency shall continue to have financial responsibility for support and maintenance of the child during the period of the placement. Nothing contained herein shall defeat a claim of jurisdiction by a receiving state sufficient to deal with an act of delinquency or crime committed therein.
(b) When the sending agency is a public agency, it may enter into an agreement with an authorized public or private agency in the receiving state by the latter as agent for the sending agency.
(c) Nothing in this compact shall be construed to prevent a private charitable agency authorized to place children in the receiving state from performing services or acting as agent in the receiving state from discharging financial responsibility for the support and maintenance of a child who has been placed on behalf of the sending agency without relieving the responsibility set forth in paragraph (a) hereof.
ARTICLE VI. INSTITUTIONAL CARE OF DELINQUENT CHILDREN
A child adjudicated delinquent may be placed in an institution in another party jurisdiction pursuant to this compact but no such placement shall be made unless the child is given a court hearing on notice to the parent or guardian with opportunity to be heard, prior to his being sent to such other party jurisdiction for institutional care and the court finds that:
(1) Equivalent facilities for the child are not available in the sending agency's jurisdiction, and
(2) Institutional care in the other jurisdiction is in the best interest of the child and will not produce undue hardship.
ARTICLE VII. COMPACT ADMINISTRATOR
The executive head of each jurisdiction party to this compact shall designate an officer who shall be general coordinator of activities under this compact in his jurisdiction and who, acting jointly with like officers of other party jurisdictions, shall have power to promulgate rules and regulations to carry out more effectively the terms and provisions of this compact.
ARTICLE VIII. LIMITATIONS
This compact shall not apply to:
(a) The sending or bringing of a child into a receiving state by his parent, stepparent, grandparent, adult brother or sister, adult uncle or aunt, or his guardian and leaving the child with any such relative or nonagency guardian in the receiving state.
(b) Any placement, sending, or bringing of a child into a receiving state pursuant to any other interstate compact to which both the state from which the child is sent or brought and the receiving state are party, or to any other agreement between said states which has the force of law.
ARTICLE IX. ENACTMENT AND WITHDRAWAL
This compact shall be open to joinder by any state, territory, or possession of the United States, the District of Columbia, the Commonwealth of Puerto Rico and, with the consent of Congress, the Government of Canada, or any province thereof. It shall become effective with respect to any such jurisdiction when such jurisdiction has enacted the same into law. Withdrawal from this compact shall be by the enactment of a statute repealing the same, but shall not take effect until two years after the effective date of such statute and until written notice of the withdrawal has been given by the withdrawing state to the Governor of each other party jurisdiction. Withdrawal of a party shall not affect the rights, duties, and obligations under this compact of any sending agency therein with respect to a placement made prior to the effective date or withdrawal.
ARTICLE X. CONSTRUCTION AND SEVERABILITY
The provisions of this compact shall be liberally construed to effectuate the purposes thereof. The provisions of this compact shall be severable and if any phrase, clause, sentence, or provision of this compact is declared to be contrary to the constitution of any party state or of the United States or the applicability thereof to any government, agency, person, or circumstance is held invalid, the validity of the remainder of this compact and the applicability thereof to any government, agency, person, or circumstance shall not be affected thereby. If this compact shall be held contrary to the Constitution of any state party thereto, the compact shall remain in full force and effect as to the remaining states and in full force and effect as to the state affected as to all severable matters.
Source: SL 1974, ch 180, § 1.
26-13-2. Department as authority to concur in placement of children.
The term, "appropriate public authorities," as used in Article III of the interstate compact on the placement of children shall, with reference to this state, mean the Department of Social Services and said department shall receive and act with reference to notices required by said Article III.
Source: SL 1974, ch 180, § 3.
26-13-3. Department as agency for supervision of children placed.
As used in paragraph (a) of Article V of the interstate compact on the placement of children, the term, "appropriate authority in the receiving state," with reference to this state shall mean the Department of Social Services.
Source: SL 1974, ch 180, § 4.
26-13-4. Executive authority--Administration of compact.
As used in Article VII of the interstate compact on the placement of children, the term, "executive," shall mean the Governor. The Governor is hereby authorized to appoint a compact administrator in accordance with the terms of said Article VII, and the administration of the compact shall be in the Department of Social Services.
Source: SL 1974, ch 180, § 9.
26-13-5. Financial responsibility for child placement.
Financial responsibility for any child placed pursuant to the provisions of the interstate compact on the placement of children shall be determined in accordance with the provisions of Article V thereof in the first instance. However, in the event of partial or complete default of performance thereunder, the provisions of chapters 25-7 and 25-9 also may be invoked.
Source: SL 1974, ch 180, § 2.
26-13-6. Supplementary agreements with other states--Approval by commissioner of finance.
The officers and agencies of this state and its subdivisions having authority to place children are hereby empowered to enter into agreements with appropriate officers or agencies of or in other party states pursuant to paragraph (b) of Article V of the interstate compact on the placement of children. Any such agreement which contains a financial commitment or imposes a financial obligation on this state or subdivision or agency thereof shall not be binding unless it has the approval in writing of the commissioner of finance and management.
Source: SL 1974, ch 180, § 5.
26-13-8. Placement of child in another state--Retention of jurisdiction by court.
Any court having jurisdiction to place delinquent children may place such a child in an institution or in another state pursuant to Article V of the interstate compact on the placement of children and shall retain jurisdiction as provided in Article V thereof.
Source: SL 1974, ch 180, § 8.
26-13-9. Visitation, inspection, and supervision requirements deemed met when performed pursuant to compact.
Any requirements for visitation, inspection, or supervision of children, homes, institutions, or other agencies in another party state which may apply under the provisions of this chapter shall be deemed to be met if performed pursuant to an agreement entered into by appropriate officers or agencies of this state or a subdivision thereof as contemplated by paragraph (b) of Article V of the interstate compact on the placement of children.
Source: SL 1974, ch 180, § 6.
26-14-1
Creation--Expenditure restricted.
26-14-2
Acceptance of contributions.
26-14-3
Use of fund--Administrative charges prohibited.
26-14-4
Repealed.
26-14-5
Participating fund status.
26-14-1. Creation--Expenditure restricted.
The children's trust fund is created as a separate fund in the state treasury. The fund shall be expended only as provided in this chapter.
Source: SL 1984, ch 194, § 1.
26-14-2. Acceptance of contributions.
The state treasurer may receive, by gift or devise, contributions, grants, or gifts in cash or otherwise from persons, associations, or corporations to be deposited in the children's trust fund.
Source: SL 1984, ch 194, § 3.
26-14-3. Use of fund--Administrative charges prohibited.
The children's trust fund may be used with any other money otherwise annually appropriated or contributed to nonprofit organizations to establish or continue community-based education programs to prevent the occurrence and recurrence of child abuse and neglect. The department may not assess administrative fees or charges against the fund.
Source: SL 1984, ch 194, § 4; SL 1987, ch 196; SL 1995, ch 153, § 1; SL 2001, ch 147, § 1.
26-14-5. Participating fund status.
The children's trust fund shall be designated as a participating fund pursuant to § 4-5-30.
Source: SL 1984, ch 194, § 6.
26-15-1
Programs developed by school districts--Private schools.
26-15-2
Purpose--Requirements.
26-15-3
Periodic offering of program--Notice to parents.
26-15-4
Other fingerprinting programs unaffected.
26-15-1. Programs developed by school districts--Private schools.
Each public school district shall, in coordination with local law enforcement agencies, develop a fingerprinting program for students of elementary and secondary schools. The principal or chief administrator of a nonpublic or parochial school may develop a fingerprinting program for students of the school.
Source: SL 1985, ch 217, § 1.
26-15-2. Purpose--Requirements.
Fingerprinting programs shall be developed for the sole purpose of providing a means by which a missing child may be located or identified and shall be operated as follows:
(1) No student or minor may be required to participate in the program;
(2) In order for a student or minor to participate in the program, the parents, custodial parent, legal custodian, or other person responsible for the student or minor shall authorize the student's or minor's participation by signing a form supplied by the school district or principal or chief administrator of the nonpublic school;
(3) The fingerprinting of students or minors shall be performed under the supervision of local law enforcement agencies on forms developed by the school district or nonpublic school and approved by local law enforcement agencies;
(4) All completed fingerprint forms shall be given to the parents, custodial parent, guardian, legal custodian, or other person responsible for a student or minor after the fingerprinting. No copy of a fingerprinting shall be retained by a law enforcement agency, school, school district, or any other person except the student's or minor's parent, guardian, or legal custodian;
(5) The name, sex, height, weight, hair and eye color, and date and place of birth of the student or minor shall be indicated on the fingerprint card or form.
Source: SL 1985, ch 217, § 2.
26-15-3. Periodic offering of program--Notice to parents.
The fingerprinting program developed pursuant to this chapter shall be offered on a periodic basis. Parents, guardians, legal custodians, and residents of school districts shall be notified of the program by means of memoranda or letters sent to these persons, by newspaper articles or by other reasonable means.
Source: SL 1985, ch 217, § 3.
26-15-4. Other fingerprinting programs unaffected.
This chapter does not apply to any fingerprinting programs for minors that are provided by private organizations or governmental entities other than school districts.
Source: SL 1985, ch 217, § 4.
26-16-1
Agreement to form county interdisciplinary child information team--Members.
26-16-2
Team voting to allow additional persons to join team--Authorized members.
26-16-3
Auxiliary teams.
26-16-4
Information sharing in serving child for specified purposes--Confidentiality.
26-16-5
Terms of written agreement--Filing.
26-16-6
Education records.
26-16-7
Immunity from civil liability for team members acting in good faith.
26-16-8
Agreement to include requirement for notice to parent or guardian--Exception.
26-16-1. Agreement to form county interdisciplinary child information team--Members.
The following persons and agencies operating within a county may, by written agreement, form a county interdisciplinary child information team:
(1) The state's attorney;
(2) The county sheriff;
(3) The chief of police of any municipality;
(4) The superintendent or the chief executive officer of any school district;
(5) The Department of Social Services;
(6) The Department of Corrections; and
(7) The administrator of the county teen court.
Source: SL 2005, ch 143, § 1.
26-16-2. Team voting to allow additional persons to join team--Authorized members.
The persons and agencies signing a written agreement to form a county interdisciplinary child information team may, from time to time, by majority vote, allow the following persons to sign the written agreement and join the team:
(1) Any physician, psychologist, psychiatrist, nurse, or other provider of medical and mental health care;
(2) Any administrator of any private elementary and secondary school;
(3) Any attorney practicing law in the county; and
(4) Any responsible person that has a legitimate interest in one or more of the children that the team is serving.
Source: SL 2005, ch 143, § 2.
26-16-3. Auxiliary teams.
The county interdisciplinary child information team may form one or more auxiliary teams for the purpose of providing service to a single child, a group of children, or specific children with a particular type of problem, or for any other purpose. Each auxiliary team is subject to the written agreement. Each member of an auxiliary team must be a person who has personal knowledge of or experience with some child serviced by the auxiliary team.
Source: SL 2005, ch 143, § 3.
26-16-4. Information sharing in serving child for specified purposes--Confidentiality.
The county interdisciplinary child information team and the written agreement shall facilitate the exchange and sharing of information that one or more team members may be able to use in serving a child in the course of their professions, specialities, interests, or occupations for the purpose of holding each child accountable, ensuring the safety of the child and the community, and providing early intervention to avert more serious problems. Information regarding any child that a team member supplies to other team members is confidential and may not be disseminated beyond the team.
Source: SL 2005, ch 143, § 4.
26-16-5. Terms of written agreement--Filing.
The terms of the written agreement shall provide for the rules under which the team will operate, the method by which information will be shared, distributed, and managed, the means by which the confidentiality of the information will be safeguarded, and any other matters necessary to the purpose and functions of the team. The terms of the written agreement shall also provide how the team will coordinate its efforts with child protection teams as provided in § 26-8A-17 and local interagency teams, if any, as provided in § 27A-15-54. The written agreement shall be filed with the county auditor.
Source: SL 2005, ch 143, § 5.
26-16-6. Education records.
To the extent that the county interdisciplinary child information team is involved in a proceeding that is held prior to adjudication by a court, the team satisfies the requirements of 20 U.S.C. 1232g(b)(1)(E)(ii)(I) of the Family Educational Rights and Privacy Act of 1974. South Dakota school districts may release education records to the team. The terms of the written agreement, as provided for in § 26-16-5, shall include a requirement that the officials and authorities to whom the information is disclosed certify in writing to the school district that is releasing the education records that the education records or information from the education records will not be disclosed to any other party without the prior written consent of the parent or guardian of the student.
Source: SL 2005, ch 143, § 6.
26-16-7. Immunity from civil liability for team members acting in good faith.
Any person serving as a member of a county interdisciplinary child information team as provided in § 26-16-1 whose action in facilitating the exchange and sharing of information in serving any child in the course of their professions, specialities, interests, or occupations for the purpose of holding each child accountable, ensuring the safety of the child and the community, and providing early intervention to avert more serious problems, is immune from any civil liability, arising out of any good faith act relevant to participation on any county interdisciplinary child information team, that might otherwise be incurred or imposed.
Source: SL 2005, ch 143, § 7.
26-16-8. Agreement to include requirement for notice to parent or guardian--Exception.
Any agreement pursuant to this chapter shall include a requirement for notice to the parent or guardian unless the parent or guardian is the subject of an investigation by one of the participating agencies with respect to the child's conduct or welfare.
Source: SL 2005, ch 143, § 8.
26-17-1
Agreement for parent locator service.
26-17-2
Missing child report--Time for law enforcement agency to integrate information into
national crime information center computer.
26-17-3
Notice to parents that information integrated into computer.
26-17-4
Information provided about missing child.
26-17-1. Agreement for parent locator service.
The Department of Social Services shall enter into an agreement with the secretary of health and human services as authorized by the Parental Kidnapping Act of 1980, 94 Stat. 3572, 42 U.S.C. 663, as amended, under which the services of the parent locator service established pursuant to Title IV-D of the Social Security Act, 49 Stat. 620 (1935), 42 U.S.C. 301, as amended, shall be made available to this state for the purpose of determining the whereabouts of any absent parent or child in order to enforce any law with respect to the unlawful taking or restraint of a child, or to make or enforce any child custody determination.
Source: SL 1985, ch 217, § 5; SDCL, § 22-19-13; SL 2005, ch 120, §§ 121, 125.
26-17-2. Missing child report--Time for law enforcement agency to integrate information into national crime information center computer.
When a missing child report is made to a law enforcement agency in this state that has jurisdiction in the matter, the law enforcement agency shall gather readily available information about the missing child and integrate such information into the national crime information center computer within twelve hours following the making of the report. The law enforcement agency shall make reasonable efforts to acquire additional information about the missing child following the transmittal of the initially available information and promptly integrate any additional information acquired into such computer systems.
Source: SL 1985, ch 217, § 6; SDCL, § 22-19-14; SL 2005, ch 120, §§ 122, 125.
26-17-3. Notice to parents that information integrated into computer.
Whenever a law enforcement agency integrates information about a missing child into the national crime information center computer, the law enforcement agency shall promptly notify the missing child's parents, custodial parent, guardian, or legal custodian, or any other person responsible for the missing child, of that action.
Source: SL 1985, ch 217, § 7; SDCL, § 22-19-15; SL 2005, ch 120, §§ 123, 125.
26-17-4. Information provided about missing child.
Each parent, custodial parent, guardian, legal custodian, or other person responsible for the missing child shall provide available information upon request, and may provide information voluntarily, to the law enforcement agency during the information gathering process. The law enforcement agency also may obtain available information about the missing child from other persons subject to constitutional and statutory limitations.
Source: SL 1985, ch 217, § 8; SDCL, § 22-19-16; SL 2005, ch 120, §§ 124, 125.
26-18-1
Short title.
26-18-2
Definitions.
26-18-3
Cooperation and communication among courts.
26-18-4
Actions for abduction prevention measures.
26-18-5
Jurisdiction.
26-18-6
Contents of petition.
26-18-7
Factors to determine risk of abduction.
26-18-8
Provisions and measures to prevent abduction.
26-18-9
Warrant to take physical custody of child.
26-18-10
Duration of abduction prevention order.
26-18-11
Uniformity of application and construction.
26-18-12
Relation to Electronic Signatures in Global and National Commerce Act.
26-18-1. Short title.
This chapter may be cited as the Uniform Child Abduction Prevention Act.
Source: SL 2007, ch 169, § 1.
26-18-2. Definitions.
In this chapter:
(1) "Abduction" means the wrongful removal or wrongful retention of a child.
(2) "Child" means an unemancipated individual who is less than 18 years of age.
(3) "Child-custody determination" means a judgment, decree, or other order of a court providing for the legal custody, physical custody, or visitation with respect to a child. The term includes a permanent, temporary, initial, and modification order.
(4) "Child-custody proceeding" means a proceeding in which legal custody, physical custody, or visitation with respect to a child is at issue. The term includes a proceeding for divorce, dissolution of marriage, separation, neglect, abuse, dependency, guardianship, paternity, termination of parental rights, or protection from domestic violence.
(5) "Court" means an entity authorized under the law of a state to establish, enforce, or modify a child-custody determination.
(6) "Petition" includes a motion or its equivalent.
(7) "Record" means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.
(8) "State" means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States. The term includes a federally recognized Indian tribe or nation.
(9) "Travel document" means records relating to a travel itinerary, including travel tickets, passes, reservations for transportation, or accommodations. The term does not include a passport or visa.
(10) "Wrongful removal" means the taking of a child that breaches rights of custody or visitation given or recognized under the law of this state.
(11) "Wrongful retention" means the keeping or concealing of a child that breaches rights of custody or visitation given or recognized under the law of this state.
Source: SL 2007, ch 169, § 2.
26-18-3. Cooperation and communication among courts.
Sections 26-5B-110, 26-5B-111, and 26-5B-112 apply to cooperation and communications among courts in proceedings under this chapter.
Source: SL 2007, ch 169, § 3.
26-18-4. Actions for abduction prevention measures.
(a) A court on its own motion may order abduction prevention measures in a child-custody proceeding if the court finds that the evidence establishes a credible risk of abduction of the child.
(b) A party to a child-custody determination or another individual or entity having a right under the law of this state or any other state to seek a child-custody determination for the child may file a petition seeking abduction prevention measures to protect the child under this chapter.
(c) A prosecutor or public authority designated under § 26-5B-315 may seek a warrant to take physical custody of a child under § 26-18-9 or other appropriate prevention measures.
Source: SL 2007, ch 169, § 4.
26-18-5. Jurisdiction.
(a) A petition under this chapter may be filed only in a court that has jurisdiction to make a child-custody determination with respect to the child at issue under chapter 26-5B.
(b) A court of this state has temporary emergency jurisdiction under § 26-5B-204 if the court finds a credible risk of abduction.
Source: SL 2007, ch 169, § 5.
26-18-6. Contents of petition.
A petition under this chapter must be verified and include a copy of any existing child-custody determination, if available. The petition must specify the risk factors for abduction, including the relevant factors described in § 26-18-7. Subject to subsection 26-5B-209(e), if reasonably ascertainable, the petition must contain:
(1) The name, date of birth, and gender of the child;
(2) The customary address and current physical location of the child;
(3) The identity, customary address, and current physical location of the respondent;
(4) A statement of whether a prior action to prevent abduction or domestic violence has been filed by a party or other individual or entity having custody of the child, and the date, location, and disposition of the action;
(5) A statement of whether a party to the proceeding has been arrested for a crime related to domestic violence, stalking, or child abuse or neglect, and the date, location, and disposition of the case; and
(6) Any other information required to be submitted to the court for a child-custody determination under § 26-5B-209.
Source: SL 2007, ch 169, § 6.
26-18-7. Factors to determine risk of abduction.
(a) In determining whether there is a credible risk of abduction of a child, the court shall consider any evidence that the petitioner or respondent:
(1) Has previously abducted or attempted to abduct the child;
(2) Has threatened to abduct the child;
(3) Has recently engaged in activities that may indicate a planned abduction, including:
(A) Abandoning employment;
(B) Selling a primary residence;
(C) Terminating a lease;
(D) Closing bank or other financial management accounts, liquidating assets, hiding or destroying financial documents, or conducting any unusual financial activities;
(E) Applying for a passport or visa or obtaining travel documents for the respondent, a family member, or the child; or
(F) Seeking to obtain the child's birth certificate or school or medical records;
(4) Has engaged in domestic violence, stalking, or child abuse or neglect;
(5) Has refused to follow a child-custody determination;
(6) Lacks strong familial, financial, emotional, or cultural ties to the state or the United States;
(7) Has strong familial, financial, emotional, or cultural ties to another state or country;
(8) Is likely to take the child to a country that:
(A) Is not a party to the Hague Convention on the Civil Aspects of International Child Abduction and does not provide for the extradition of an abducting parent or for the return of an abducted child;
(B) Is a party to the Hague Convention on the Civil Aspects of International Child Abduction but:
(i) The Hague Convention on the Civil Aspects of International Child Abduction is not in force between the United States and that country;
(ii) Is noncompliant according to the most recent compliance report issued by the United States Department of State; or
(iii) Lacks legal mechanisms for immediately and effectively enforcing a return order under the Hague Convention on the Civil Aspects of International Child Abduction;
(C) Poses a risk that the child's physical or emotional health or safety would be endangered in the country because of specific circumstances relating to the child or because of human rights violations committed against children;
(D) Has laws or practices that would:
(i) Enable the respondent, without due cause, to prevent the petitioner from contacting the child;
(ii) Restrict the petitioner from freely traveling to or exiting from the country because of the petitioner's gender, nationality, marital status, or religion; or
(iii) Restrict the child's ability legally to leave the country after the child reaches the age of majority because of a child's gender, nationality, or religion;
(E) Is included by the United States Department of State on a current list of state sponsors of terrorism;
(F) Does not have an official United States diplomatic presence in the country; or
(G) Is engaged in active military action or war, including a civil war, to which the child may be exposed;
(9) Is undergoing a change in immigration or citizenship status that would adversely affect the respondent's ability to remain in the United States legally;
(10) Has had an application for United States citizenship denied;
(11) Has forged or presented misleading or false evidence on government forms or supporting documents to obtain or attempt to obtain a passport, a visa, travel documents, a Social Security card, a driver's license, or other government-issued identification card or has made a misrepresentation to the United States government;
(12) Has used multiple names to attempt to mislead or defraud; or
(13) Has engaged in any other conduct the court considers relevant to the risk of abduction.
(b) In the hearing on a petition under this chapter, the court shall consider any evidence that the respondent believed in good faith that the respondent's conduct was necessary to avoid imminent harm to the child or respondent and any other evidence that may be relevant to whether the respondent may be permitted to remove or retain the child.
Source: SL 2007, ch 169, § 7.
26-18-8. Provisions and measures to prevent abduction.
(a) If a petition is filed under this chapter, the court may enter an order that must include:
(1) The basis for the court's exercise of jurisdiction;
(2) The manner in which notice and opportunity to be heard were given to the persons entitled to notice of the proceeding;
(3) A detailed description of each party's custody and visitation rights and residential arrangements for the child;
(4) A provision stating that a violation of the order may subject the party in violation to civil and criminal penalties; and
(5) Identification of the child's country of habitual residence at the time of the issuance of the order.
(b) If, at a hearing on a petition under this chapter or on the court's own motion, the court after reviewing the evidence finds a credible risk of abduction of the child, the court shall enter an abduction prevention order. The order must include the provisions required by subsection (a) and measures and conditions, including those in subsections (c), (d), and (e), that are reasonably calculated to prevent abduction of the child, giving due consideration to the custody and visitation rights of the parties. The court shall consider the age of the child, the potential harm to the child from an abduction, the legal and practical difficulties of returning the child to the jurisdiction if abducted, and the reasons for the potential abduction, including evidence of domestic violence, stalking, or child abuse or neglect.
(c) An abduction prevention order may include one or more of the following:
(1) An imposition of travel restrictions that require that a party traveling with the child outside a designated geographical area provide the other party with the following:
(A) The travel itinerary of the child;
(B) A list of physical addresses and telephone numbers at which the child can be reached at specified times; and
(C) Copies of all travel documents;
(2) A prohibition of the respondent directly or indirectly:
(A) Removing the child from this state, the United States, or another geographic area without permission of the court or the petitioner's written consent;
(B) Removing or retaining the child in violation of a child-custody determination;
(C) Removing the child from school or a child-care or similar facility; or
(D) Approaching the child at any location other than a site designated for supervised visitation;
(3) A requirement that a party to register the order in another state as a prerequisite to allowing the child to travel to that state;
(4) With regard to the child's passport:
(A) A direction that the petitioner place the child's name in the United States Department of State's Child Passport Issuance Alert Program;
(B) A requirement that the respondent surrender to the court or the petitioner's attorney any United States or foreign passport issued in the child's name, including a passport issued in the name of both the parent and the child; and
(C) A prohibition upon the respondent from applying on behalf of the child for a new or replacement passport or visa;
(5) As a prerequisite to exercising custody or visitation, a requirement that the respondent provide:
(A) To the United States Department of State Office of Children's Issues and the relevant foreign consulate or embassy, an authenticated copy of the order detailing passport and travel restrictions for the child;
(B) To the court:
(i) Proof that the respondent has provided the information in subparagraph (A); and
(ii) An acknowledgment in a record from the relevant foreign consulate or embassy that no passport application has been made, or passport issued, on behalf of the child;
(C) To the petitioner, proof of registration with the United States Embassy or other United States diplomatic presence in the destination country and with the Central Authority for the Hague Convention on the Civil Aspects of International Child Abduction, if that Convention is in effect between the United States and the destination country, unless one of the parties objects; and
(D) A written waiver under the Privacy Act, 5 U.S.C. Section 552a, with respect to any document, application, or other information pertaining to the child authorizing its disclosure to the court and the petitioner; and
(6) Upon the petitioner's request, a requirement that the respondent obtain an order from the relevant foreign country containing terms identical to the child-custody determination issued in the United States.
(d) In an abduction prevention order, the court may impose conditions on the exercise of custody or visitation that:
(1) Limit visitation or require that visitation with the child by the respondent be supervised until the court finds that supervision is no longer necessary and order the respondent to pay the costs of supervision;
(2) Require the respondent to post a bond or provide other security in an amount sufficient to serve as a financial deterrent to abduction, the proceeds of which may be used to pay for the reasonable expenses of recovery of the child, including reasonable attorneys fees and costs if there is an abduction; and
(3) Require the respondent to obtain education on the potentially harmful effects to the child from abduction.
(e) To prevent imminent abduction of a child, a court may:
(1) Issue a warrant to take physical custody of the child under § 26-18-9 or the law of this state other than this chapter;
(2) Direct the use of law enforcement to take any action reasonably necessary to locate the child, obtain return of the child, or enforce a custody determination under this chapter or the law of this state other than this chapter; or
(3) Grant any other relief allowed under the law of this state other than this chapter.
(f) The remedies provided in this chapter are cumulative and do not affect the availability of other remedies to prevent abduction.
Source: SL 2007, ch 169, § 8.
26-18-9. Warrant to take physical custody of child.
(a) If a petition under this chapter contains allegations, and the court finds that there is a credible risk that the child is imminently likely to be wrongfully removed, the court may issue an ex parte warrant to take physical custody of the child.
(b) The respondent on a petition under subsection (a) must be afforded an opportunity to be heard at the earliest possible time after the ex parte warrant is executed, but not later than the next judicial day unless a hearing on that date is impossible. In that event, the court shall hold the hearing on the first judicial day possible.
(c) An ex parte warrant under subsection (a) to take physical custody of a child must:
(1) Recite the facts upon which a determination of a credible risk of imminent wrongful removal of the child is based;
(2) Direct law enforcement officers to take physical custody of the child immediately;
(3) State the date and time for the hearing on the petition; and
(4) Provide for the safe interim placement of the child pending further order of the court.
(d) If feasible, before issuing a warrant and before determining the placement of the child after the warrant is executed, the court may order a search of the relevant databases of the National Crime Information Center system and similar state databases to determine if either the petitioner or respondent has a history of domestic violence, stalking, or child abuse or neglect.
(e) The petition and warrant must be served on the respondent when or immediately after the child is taken into physical custody.
(f) A warrant to take physical custody of a child, issued by this state or another state, is enforceable throughout this state. If the court finds that a less intrusive remedy will not be effective, it may authorize law enforcement officers to enter private property to take physical custody of the child. If required by exigent circumstances, the court may authorize law enforcement officers to make a forcible entry at any hour.
(g) If the court finds, after a hearing, that a petitioner sought an ex parte warrant under subsection (a) for the purpose of harassment or in bad faith, the court may award the respondent reasonable attorney's fees, costs, and expenses.
(h) This chapter does not affect the availability of relief allowed under the law of this state other than this chapter.
Source: SL 2007, ch 169, § 9.
26-18-10. Duration of abduction prevention order.
An abduction prevention order remains in effect until the earliest of:
(1) The time stated in the order;
(2) The emancipation of the child;
(3) The child's attaining eighteen years of age; or
(4) The time the order is modified, revoked, vacated, or superseded by a court with jurisdiction under §§ 26-5B-201 to 26-5B-203, inclusive.
Source: SL 2007, ch 169, § 10.
26-18-11. Uniformity of application and construction.
In applying and construing this uniform act, consideration must be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.
Source: SL 2007, ch 169, § 11.
26-18-12. Relation to Electronic Signatures in Global and National Commerce Act.
This chapter modifies, limits, and supersedes the federal Electronic Signatures in Global and National Commerce Act, 15 U.S.C. Section 7001, et seq., but does not modify, limit, or supersede Section 101(c) of the act, 15 U.S.C. Section 7001(c), of that act or authorize electronic delivery of any of the notices described in Section 103(b) of that act, 15 U. S.C. Section 7003(b).
Source: SL 2007, ch 169, § 12.