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TITLE 10

Courts and Judicial Procedure

Organization, Powers, Jurisdiction and Operation of Courts

CHAPTER 9. THE FAMILY COURT OF THE STATE OF DELAWARE

Subchapter III. Procedure

§ 1001. Records; expunging evidence of adjudication; destroying indicia of arrest.

(a) In any case wherein an adjudication has been entered upon the status of a child under 18 years of age and 3 years have elapsed since the date thereof and no subsequent adjudication has been entered against such child, the child or the parent or guardian may present a duly verified petition to the Court setting forth all the facts in the matter and praying for the relief provided for in this section; provided, however, that in any case wherein an adjudication has been entered upon the status of a child under 18 years of age and such child intends to enlist in any branch of the armed forces of the United States, the child may at any time after the date of such adjudication present a duly verified petition to the Court setting forth all the facts in the matter including an intention to enlist documented in writing by the applicable military authority in said armed forces and praying for the relief provided in this section, and provided further that pursuant to the provisions and subject to the limitations hereinafter provided for in this section, an order directing an expunging from the records of all evidence of such adjudication upon the status of any such child and the destruction of all indicia of arrest including fingerprints and photographs may be granted.

(b) Where a child under 18 years of age has been charged with an act of delinquency, and;

(1) The charges have been nolle prosequied, dismissed or dropped, or

(2) The charges have been disposed of through arbitration or otherwise without an adjudication of delinquency,

the person so charged or a representative of such person on the person's behalf may file a petition with the Court setting forth all the relevant facts in the matter and requesting expungement of all indicia of arrest and all applicable police and court records relating to the charge. The Court, in the best interest of both the child and the State, may grant or refuse to grant the relief requested in the petition. However, the court shall grant petitions filed by the Attorney General or his or her designee pursuant to the last paragraph of this subsection.

Notwithstanding any provision to the contrary, the Attorney General or designee responsible for prosecuting a delinquency action may petition the Court to expunge the instant arrest record of a juvenile if at the time of a state motion to dismiss or entry of nolle prosequi in the case, the prosecutor has determined that the continued existence and possible dissemination of information relating to the arrest of the juvenile for the matter dismissed or for which a nolle prosequi was entered may cause circumstances which constitute a manifest injustice to the juvenile.

(c) Upon reading and filing such petition the Court may by order fix a time not less than 10 nor more than 30 days thereafter for the hearing of the matter, a copy of which order shall be served in the usual manner upon the Attorney General within 5 days from the date of such order and at the time so appointed the Court shall hear the matter and if no material objection is made and no reason appears to the contrary, an order may be granted directing the Clerk of the Court to expunge from the records all evidence of such adjudication, excepting adjudications involving the following crimes: Second degree murder, first degree arson, and first degree burglary, and further directing that all indicia of arrest including fingerprints and photographs be destroyed. The Court may grant such relief without a hearing when it appears in writing that the petition is not opposed by the Attorney General.

10 Del. C. 1953, § 930; 58 Del. Laws, c. 491; 64 Del. Laws, c. 326, §§ 1, 2; 66 Del. Laws, c. 243, § 1; 69 Del. Laws, c. 335, § 1; 70 Del. Laws, c. 186, § 1; 72 Del. Laws, c. 150, §§ 1, 2.;

§ 1002. Delinquent child not criminal; prosecution limited.

Except as provided in § 1010, no child shall be deemed a criminal by virtue of an allegation or adjudication of delinquency, nor shall a child be charged with or prosecuted for a crime in any other court. In this Court the nature of the hearing and all other proceedings shall be in the interest of rather than against the child. Except as otherwise provided, there shall be no proceedings other than appellate proceedings in any court other than this Court in the interest of a child alleged to be dependent, neglected, or delinquent. However, if a child reaches its 18th birthday prior to an adjudication on a charge of delinquency arising from acts which would constitute a felony were the child charged as an adult under the laws of this State, then the Family Court shall retain jurisdiction for the sole purpose of transferring the matter to the Superior Court for prosecution as an adult. Any such transfer under this section shall not be subject to § 1011 of this title.

10 Del. C. 1953, § 931; 58 Del. Laws, c. 114, § 1; 69 Del. Laws, c. 205, § 1; 69 Del. Laws, c. 335, § 1; 70 Del. Laws, c. 186, § 1.;

§ 1003. Commencement; parties.

Any person having knowledge of a child within the State who appears to be neglected, dependent or delinquent may file with the Clerk of the Court a petition in writing setting forth the facts verified by affidavit. Neither the Attorney General nor any Deputy Attorneys are required to appear in any proceeding before a Master involving a petition alleging an act of delinquency, but, at the Attorney General's sole discretion, may appear in any such proceeding.

10 Del. C. 1953, § 932; 58 Del. Laws, c. 114, § 1; 66 Del. Laws, c. 413, § 1; 69 Del. Laws, c. 335, § 1.;

§ 1004. Duties of officer having child in custody.

A peace officer may take into custody a child the officer believes to be dependent, neglected or delinquent. Any peace officer having taken such a child into custody shall immediately notify the child's custodian citing the reasons therefor. If the custodian refuses to accept the child or cannot be located or cannot provide necessary care for the child, the peace officer shall:

(1) When the child is not charged with a delinquent act, immediately contact the Division of Child Protective Services of the Department of Services for Children, Youth and Their Families, who shall be responsible for further pursuing the whereabouts of the custodian or providing shelter and care for the child in a shelter home, foster home, group home, private agency home or other appropriate facility for children. The child shall be placed in a manner consistent with § 1009(e) of this title. After making every reasonable effort to locate the custodian, the Division of Child Protective Services of the Department of Services for Children, Youth and Their Families may release the child to the child's custodian or forthwith file with the Court a petition for custody alleging dependency or neglect.

(2) When the child has been charged with a delinquent act, take the child directly before the Court if the Court is in session or take the child before a court or commissioner for disposition in accordance with § 1005 of this title. After taking the child into custody, the peace officer shall forthwith file with the Court a sworn complaint alleging delinquency with a report for the reason of the child's apprehension.

10 Del. C. 1953, § 933; 58 Del. Laws, c. 114, § 1; 61 Del. Laws, c. 334, § 2; 64 Del. Laws, c. 108, § 7; 66 Del. Laws, c. 13, § 2; 69 Del. Laws, c. 335, § 1; 76 Del. Laws, c. 136, § 6.;

§ 1005. Other courts; issuance of warrants; powers and duties.

(a) Any judge of any state or municipal court or any official designated for such purpose may issue a warrant directing a peace officer to take into custody a child alleged to be delinquent.

(b) Any judge of any court of this State, including justices of the peace and local aldermen, before whom a child is brought by a peace officer:

(1) May release the child on the child's own recognizance, or on that of a person having the child's care, to appear before the court when notified so to do;

(2) May require the child to furnish reasonable cash or property bail or other surety for the child's appearance before the court when notified so to do;

(3) May order the child detained in a facility designated by the Department of Services for Children, Youth and Their Families pursuant to § 1007(a) of this title provided that no means less restrictive of the child's liberty gives reasonable assurance that the child will attend the adjudicatory hearing; and provided, that the alternatives delineated in § 1007(b)(5) of this title have been considered; and provided, that such detention shall continue only until the next session of the Family Court;

(4) Shall notify the person having the care of the child, if an address be known, of the child's having been taken into custody, the reason therefor, and the disposition of the matter;

(5) Shall file with this Court forthwith a petition in accordance with § 1003 on forms furnished by this Court.

10 Del. C. 1953, § 934; 58 Del. Laws, c. 114, § 1; 64 Del. Laws, c. 108, § 20; 67 Del. Laws, c. 158, § 2; 67 Del. Laws, c. 390, § 2; 67 Del. Laws, c. 392, § 1; 69 Del. Laws, c. 335, § 1; 70 Del. Laws, c. 186, § 1.;

§ 1006. Process; service; return; interim order; investigation.

(a) Following commencement of any action concerning a child, the child and the child's custodian shall be brought into the Court by summons or other process. If no custodian can be located, the child's guardian, or some suitable person (preferably a near relative) appointed by the Court to act in behalf of the child shall be notified to appear.

(b) A summons or other process of the Court may be served by any probation officer, sheriff, county, town, or city constable or police officer within the officer's or constable's jurisdiction, either by reading the same to the person to be served, or by delivering a copy thereof to the person or by leaving a copy thereof at the person's usual place of abode in the presence of an adult person.

(c) The return of such summons or other process with the indorsement of service by the serving officer in accordance herewith shall be sufficient proof thereof.

(d) Where no custodian or interested close relative can be located, the Court may make such interim order as the interest of the child may require.

(e) In delinquency proceedings after the child has been adjudged delinquent and at any time in all other proceedings concerning a child the Court may accept a study relating to the child previously made by any recognized welfare agency, or may order a study made.

10 Del. C. 1953, § 935; 58 Del. Laws, c. 114, § 1; 69 Del. Laws, c. 335, § 1; 70 Del. Laws, c. 186, § 1.;

§ 1007. Disposition of child pending adjudication; payment for care [Effective until July 12, 2012]

(a) Pending adjudication no child alleged to be delinquent may be placed in secure detention operated by the Department of Services for Children, Youth and Their Families unless the Court determines that no means less restrictive of the child's liberty gives reasonable assurance that the child will attend the adjudicatory hearing and:

(1) The child is a fugitive from another jurisdiction on a delinquency petition; or

(2) The child is charged with an offense, which, if committed by an adult would constitute a felony, including offences contained within this title, Title 11, and Chapter 47 of Title 16, the Uniform Controlled Substance Act; or

(3) The child is charged with an offense, which, if committed by an adult would constitute a Class A misdemeanor, provided that offense involved violence, a sexual offense, unlawful imprisonment, or a weapons offense; or

(4) The child has, in the past, failed to appear at a delinquency hearing and circumstances indicate the child will likely fail to appear for further proceedings, or, absent a prior history of failure to appear, circumstances demonstrate a substantial probability that the child will fail to appear at a subsequent hearing; or

(5) The child is alleged to be intimidating 1 or more witnesses or otherwise unlawfully interfering with the administration of justice; or

(6) The child has escaped from a secure or nonsecure detention facility, or has demonstrated a pattern of repeated failure to comply with court-ordered placement pursuant to a delinquency petition in an out-of-home residential or foster care setting; or

(7) The child has incurred new charges while a resident, as a result of a prior delinquency petition, of a nonsecure detention facility, out-of-home residential or foster care setting and the parent, guardian, custodian or facility refuses to take custody of the child; or

(8) The child has breached a condition of release; or,

(9) Having been released pending adjudication on prior charges for which the child could have been detained, the child is alleged to have committed additional changes on which the child would not normally be permissibly held in secure detention under this section.

(b) Prior to making a decision of secure detention pending adjudication the Court shall consider and, where appropriate, employ any of the following alternatives:

(1) Release on the child's own recognizance;

(2) Release to parents, guardian, custodian or other willing member of the child's family acceptable to the Court;

(3) Release on bail, with or without conditions;

(4) Release with imposition of restrictions on activities, associations, movements and residence reasonably related to securing the appearance of the child at the next hearing;

(5) Release to a nonsecure detention alternative developed by the Department of Services for Children, Youth and Their Families such as home detention, daily monitoring, intensive home base services with supervision, foster placement, or a nonsecure residential setting.

(c) If the Court places a child in secure detention pending adjudication, the Court shall state in writing the basis for its detention determination pursuant to subsection (a) of this section and the reasons for not employing any of the secure detention alternatives under subsection (b) of this section. In the event that a risk assessment instrument has been completed for the child for the pending offense, with the resulting presumptive disposition being to release the child, or hold the child in a nonsecure detention facility, the Court shall further state in writing the basis for overriding that presumption.

(d) If a child has been placed in secure detention pending adjudication on a commitment from the Justice of the Peace Court, an initial hearing to determine the appropriateness of detention and to review conditions of release shall be held the next day the Family Court is in session.

(e) A detention review with counsel shall be heard within 14 days of the initial detention hearing and if detention is continued, detention review hearings shall be held thereafter at intervals not to exceed 30 days.

(f) When a juvenile is detained pending adjudication the adjudicatory hearing shall be held no later than 30 days from the date of detention. If no adjudicatory hearing is held within 30 days, upon motion by a juvenile, the Court shall within 72 hours fix a date for the adjudicatory hearing unless it grants a continuance of the hearing for good cause shown.

(g) Pending adjudication the Court may release a child alleged to be dependent or neglected to the custodian; or, where the welfare of the child appears to require such action, place the child in the care of the Department of Services for Children, Youth and Their Families or any suitable person or agency; provided, however, that if the child is placed with someone other than a relative, the Court may require an evaluation and report from the Department of Services for Children, Youth and Their Families.

(h) In any instance in which a person responsible for the custody and care of a child refuses to take custody pending adjudication of that child, the Family Court may order the person legally liable therefore to pay for the child's care during the period of placement outside the person's own home.

(i) Pending adjudication, the Court may defer proceedings pending further investigation, medical or other examination, or where the interest of a child will thereby be served.

(j) For purposes of subsections (a)-(c) of this section above, the term "the Court" shall mean both the Justice of the Peace Court and the Family Court. In all other subsections the term shall mean the Family Court only.

10 Del. C. 1953, § 936; 58 Del. Laws, c. 114, § 1; 64 Del. Laws, c. 108, §§ 6, 20; 67 Del. Laws, c. 390, § 1; 67 Del. Laws, c. 391, § 1; 69 Del. Laws, c. 335, § 1; 70 Del. Laws, c. 186, § 1; 77 Del. Laws, c. 375, § 1.;

§ 1007. Disposition of child pending adjudication; payment for care [Effective July 12, 2012]

(1) The child is a fugitive from another jurisdiction on a delinquency petition; or

(2) The child is charged with an offense, which, if committed by an adult would constitute a felony, including offenses contained within this title and Chapter 47 of Title 16, the Uniform Controlled Substance Act, or one of the following misdemeanors: Assault in the third degree, unlawful imprisonment in the second degree, vehicular assault in the first degree, indecent exposure in the first degree, unlawful sexual contact in the third degree, or carrying a concealed dangerous instrument; or

(3) The child has wilfully failed to appear at a hearing on a delinquency petition and there is substantial probability that the child will run away or otherwise be unavailable for a subsequent court appearance; or

(4) The child has demonstrated a pattern of repeated failure to comply with court-ordered placement pursuant to a delinquency petition in an out-of-home residential or foster care setting.

(b) Prior to making a decision of secure detention pending adjudication the Court shall consider and, where appropriate, employ any of the following alternatives:

(1) Release on the child's own recognizance;

(2) Release to parents, guardian or custodian;

(3) Release on bail;

(4) Release with imposition of restrictions on activities, associations, movements and residence reasonably related to securing the appearance of the child at the next hearing;

(5) Release to a nonsecure detention alternative developed by the Department of Services for Children, Youth and Their Families such as home detention, daily monitoring, intensive homebase services with supervision, foster placement, or a nonsecure residential setting.

(d) If a child has been placed in secure detention pending adjudication an initial hearing to determine the appropriateness of detention and to review conditions of release shall be held the next day the Court is in session.

(e) No child shall be retained in secure detention after the initial hearing unless an assessment of the current charge or charges against the child and the record of the juvenile indicate to the Court that the juvenile should not be placed in a nonsecure detention alternative developed by the Department of Services for Children, Youth and Their Families as set forth in paragraph (b)(5) of this section.

(f) A detention review hearing with counsel shall be held within 14 court days of the initial detention hearing and if detention is continued, detention review hearings shall be held thereafter at intervals not to exceed 21 court days.

(g) When a juvenile is detained pending adjudication the adjudicatory hearing shall be held no later than 30 days from the date of detention. If no adjudicatory hearing is held within 30 days, upon motion by a juvenile, the Court shall within 72 hours fix a date for the adjudicatory hearing unless it grants a continuance of the hearing for good cause shown.

(h) Pending adjudication the Court may release a child alleged to be dependent or neglected to the custodian; or, where the welfare of the child appears to require such action, place the child in the care of the Department of Services for Children, Youth and Their Families or any suitable person or agency; provided, however, that if the child is placed with someone other than a relative, the Court shall require an evaluation and report from the Department of Services for Children, Youth and Their Families.

(i) Pending adjudication the Court may order the person legally liable therefor to pay for the child's care during the period of placement outside the person's own home.

(j) Pending adjudication, the Court may defer proceedings pending further investigation, medical or other examination, or where the interest of a child will thereby be served.

§ 1008. Committee on Dispositional Guidelines for Juveniles.

(a) There is hereby established a Committee on Dispositional Guidelines for Juveniles.

(b) The members of the Committee shall include the following persons or their designees:

(1) The Chief Judge of the Family Court;

(2) Family Court Judge, designated by the Chief Judge;

(3) Secretary, Department of Services for Children, Youth and Their Families;

(4) Director, Division of Youth Rehabilitative Service;

(5) Attorney General;

(6) Public Defender;

(7) Executive Director, Criminal Justice Council;

(8) Executive Director, Delaware Council on Crime and Justice;

(9) Executive Vice President, Child, Inc.;

(10) Designee of the United Way of Delaware;

(11) Chair, Child Placement Review Board;

(12) Governor's Assistant for Criminal Justice;

(13) Chairperson of the Senate Committee of Children, Youth and Families;

(14) Chairperson of the House Committee on Human Resources;

(15) Executive Director, Delaware Volunteer Legal Service.

(c) The Committee is hereby directed to develop recommendations on guidelines for use in determining dispositions for juvenile offenders. The guidelines shall include clear, consistent and objective criteria for determining that the rehabilitation plan for a youth should include a period of secure incarceration. Such guidelines shall reflect the General Assembly's intent that only chronic or violent juvenile offenders require secure incarceration, and that other adjudicated youth are more appropriately and effectively served through less restrictive programs.

(d) The Committee shall also develop guidelines for the process to be used by the Family Court and the Department of Services for Children, Youth and Their Families in reaching dispositional decisions, which shall include:

(1) Consideration of the instant offense(s) for which the youth has been adjudicated;

(2) Consideration of the youth's prior record of delinquency;

(3) The availability of less restrictive interventions which will protect public safety and provide the youth an opportunity for rehabilitation.

(e) The Committee shall develop a list of services required to provide a full continuum of placement and/or treatment options for adjudicated delinquent youth. In developing this list, the Committee shall:

(1) Review available data from both the Family Court and the Department of Services for Children, Youth and Their Families concerning the characteristics of youth who come to the attention of these agencies;

(2) Review existing programs and services of the Family Court, the Department of Services for Children, Youth and Their Families, and other social service agencies within the State;

(3) Review relevant information describing dispositional practices and services from other states and from the professional literature; and

(4) Consult with experts both within and outside the State.

(f) The Committee shall prepare a written report and recommendations and shall forward any recommendations requiring legislative action to the appropriate committee(s) of the General Assembly by January 1, 1991.

67 Del. Laws, c. 391, § 1; 69 Del. Laws, c. 335, § 1; 72 Del. Laws, c. 338, § 3.;

§ 1009. Adjudication; disposition following adjudication; commitment to custody of Department of Services for Children, Youth and Their Families; effect.

(a) Where the evidence supports such holding, the Court may declare a child to be dependent, neglected, abused, as those terms are defined by § 902(1) of Title 16, or delinquent. In declaring a child to be dependent, neglected or abused pursuant to this section, the Court shall give priority to ensuring the well-being and safety of the child.

(b) Following an adjudication by the Court in which it declares a child to be dependent or neglected, the Court may:

(1) Defer proceedings pending further investigation, medical or other examinations, or where the interests of the child will thereby be served;

(2) Allow a child to remain in his or her own home with or without Court supervision;

(3) Grant custody of a child to any person or agency where satisfactory arrangements can be made but, in the event the child is placed in a home other than the home of a relative, the Court shall require an evaluation and report from the Department of Services for Children, Youth and Their Families. However, if and only if the following conditions are met, the Court shall not order the Department of Services for Children Youth and Their Families ("DSCYF") to perform an evaluation and report on investigation of the child's placement:

a. When the child is placed in a home of an "adult individual" who fails to meet the definition of relative in § 901(20) of this title but the "adult individual" is by marriage, blood or adoption the child's great-grandparent, stepgrandparent,great-uncle or aunt, half brother or sister, stepbrother or sister, stepparent, stepuncle or aunt to the extent not already included in the definition of relative, or first cousin once removed;

b. When DSCYF has not currently filed for custody of the child on the basis of dependency or neglect and DSCYF does not plan to;

c. When there have been no allegations of abuse or neglect with respect to the child regarding the "adult individual" with whom the child is placed;

d. When DSCYF is not currently a party to a custody or visitation dispute regarding the child;

e. When DSCYF does not hold or seek custody of the child; and

f. When the child meets the definition of dependent child solely because the child has been placed on a permanent basis in the home of an "adult individual" as described in paragraph (b)(3)(i) of this section and has been placed with such individual without the consent and approval of DSCYF;

(4) Refer the child to the Department of Services for Children, Youth and Their Families for protective supervision;

(5) Grant custody of a child to the Department of Services for Children, Youth and Their Families for foster home placement;

(6) Grant the care or custody of a child to any licensed child-placing agency in this State that will accept the child, provided satisfactory arrangements can be made;

(7) Grant the care or custody of a child to any division of the Department of Services for Children, Youth and Their Families provided by the State for the care of children;

(8) Grant the care or custody of a child to any private institution within or without the State that cares for children, provided satisfactory arrangements can be made;

(9) Grant the care or custody of a child to any religious child-caring agency or institution, preferably of the child's religious faith or that of the parents, or either of them, within or without the State provided satisfactory arrangements can be made;

(10) Commit a mentally ill, retarded or disturbed child for observation or treatment to any appropriate institution within the State, or to any institution without the State provided satisfactory arrangements can be made;

(11) Order such other treatment, rehabilitation or care as in the opinion of the Department of Services for Children, Youth and Their Families would best serve the needs of the child and society.

(1) Defer proceedings pending further investigation, medical or other examinations, or where the interests of the child will thereby be served, and release the child upon the child's own recognizance or upon the recognizance of a custodian or near relative, or upon bond with surety, to appear whenever and wherever notified to do so, or where the required bond is not provided, detain the child in a facility of the Department of Services for Children, Youth and Their Families;

(2) Allow a child to remain in the child's own home with or without Court supervision;

(3) Place a child on probation;

(4) Fine a child;

(5) Order a child to make monetary restitution in whole or in part as the Court determines for out-of-pocket costs, losses or damages caused by the delinquent act of the child where the amount thereof can be ascertained;

(6) Award a judgment in favor of any municipal corporation, county, town, school district or agency of the State, or any person, partnership, corporation or association, or any religious organization whether incorporated or not, and against the parents or guardians of the delinquent child for the same or greater amount ordered against the delinquent child but not to exceed $5,000, provided that the Court finds by a preponderance of the evidence presented that:

a. The parents or guardians knew of the child's delinquent nature; and

b. The parents or guardians failed to take reasonable measures to control the child;

(7) Require that any restitution ordered against the delinquent child precede the liability of the parents or guardians for the monetary damages caused by the child's delinquent act;

(8) Require, in the absence of objections by the victim of the delinquent act of the child, that any restitution ordered against the delinquent child may be discharged in an appropriate community service arrangement with the understanding that failure to complete the community service work in good faith shall result in the reversion of this obligation to the monetary basis originally ordered by the Court;

(9) Award custody of a child to the Department of Services for Children, Youth and Their Families;

(11) Grant the care or custody of a child to any private institution within or without the State that cares for children, provided satisfactory arrangements can be made;

(12) Order the Motor Vehicle Division of the Department of Transportation to:

a. Revoke or suspend the driving privileges or operator's license possessed by the child;

b. Postpone the child's eligibility to obtain driving privileges or an operator's license if the child does not possess such privilege or license; or

c. Enter immediately all traffic, alcohol and/or drug adjudications of any minor on a driving record created by the Division of Motor Vehicles notwithstanding the minor's drivers license status, age and/or eligibility for a driver's license

in any case for a period not less than 3 months nor more than 4 years;

(13) Grant custody of a person who is charged with an act of delinquency prior to reaching the age of 18 years but becomes 18 years of age prior to disposition of the charge, to the Department of Services for Children, Youth and Their Families;

(14) Order the child to be placed under house arrest under the same requirements set forth in § 4332 and Subchapter IX of Chapter 43 of Title 11 of the Delaware Code;

(15) Order such other treatment, rehabilitation or care as in the opinion of the Department of Services for Children, Youth and Their Families would best serve the needs of the child and society.

(16) Following an adjudication in which the Court declares that a child is delinquent and sentences the child to participate in the Family Court Adjudicated Drug Court Program, the Court may impose such conditions upon the parent, guardian or custodian of the person adjudicated as the Court deems necessary to assist the person adjudicated in receiving all the treatment, rehabilitation or care ordered by the Court as best serving the needs of the child and society under this section or, in the opinion of the Court, as will enhance the ability of such parent, guardian or custodian in providing the child with adequate support, guidance and supervision necessary to meet the child's physical, mental or emotional health and well-being, provided that such parent, guardian or custodian has been previously served by summons in accordance with § 1006 of Title 10;

(17) When the Court sentences a child to participate in counseling, mental health treatment or to a Division of Prevention and Behavioral Health Services consultation or assessment as required, the Court shall be authorized, in addition to any other disposition authorized by this section, to order such child's parents, guardian or custodian to participate in counseling as determined by the Court or as recommended by the Division of Prevention and Behavioral Health Services. Such counseling shall be designed to assist in deterring future delinquent or unruly actions or other conduct or conditions which would be harmful to the child or society. If the child is Court-ordered into a detention facility or residential treatment facility, the Court may order the parents, guardian or custodian to participate in any treatment or counseling program recommended by the facility.

The authority given the Court by paragraphs (5), (6), (7) and (8) of this subsection shall be in addition to any other existing statutory or common law remedy.

(d) For the purposes of this section, the phrase "provided satisfactory arrangements can be made" shall mean that the Department of Services for Children, Youth and Their Families has approved payment for the placement of a child based upon a contract between an agency or institution and the Department or that such a placement can provide a child with the necessary and/or appropriate treatment and/or rehabilitation in the judgment of the Department of Services for Children, Youth and Their Families.

(e) Subject to the provisions governing amenability pursuant to § 1010 of this title, the Court shall commit a delinquent child to the custody of the Department of Services for Children, Youth and Their Families under such circumstances and for such periods of time as hereinafter provided:

(1) Any child who has been adjudicated delinquent by this Court of 1 or more offenses which would constitute a felony were the child charged as an adult under the laws of this State, and who shall thereafter within 12 months commit 1 or more offenses occurring subsequent to the said adjudication which offense or offenses would constitute a felony were the child charged as an adult under the laws of this State, and thereafter be adjudged delinquent of said offense or offenses, is declared a child in need of mandated institutional treatment, and this Court shall commit the child so designated to the Department of Services for Children, Youth and Their Families for at least a 6-month period of institutional confinement;

(2) A child committed to the custody of the Department of Services for Children, Youth and Their Families pursuant to this subsection shall not be released from institutional confinement on pass, on extended leave or to aftercare during the first 6 months of said commitment unless the Director of Youth Rehabilitation Services, in the Director's discretion, determines that it is in the best interest of the child's treatment to participate in programs which may require the child to leave the institution; thereafter, a child committed to the Department of Services for Children, Youth and Their Families pursuant to this subsection shall not be released from institutional confinement on pass, on extended leave or to aftercare, unless the Judge of the Family Court who originally executed the commitment order or a Judge of the Family Court designated by the Chief Judge shall, upon a petition filed by the Department of Services for Children, Youth and Their Families (or its duly authorized representative), the child, the parent(s) or guardian of said child, or by the Court's own initiative, with notice to the Attorney General, determine by a preponderance of the evidence presented at a hearing that the child has so progressed in a course of mandated institutional treatment that release would best serve both the welfare of the public and the interest of the child or unless the Director of Youth Rehabilitation Services, in the Director's discretion, determines that it is in the best interest of the child's treatment to participate in programs which may require the child to leave the institution;

(3) Where a child has been declared in need of mandated institutional treatment in accordance with paragraphs (1) and (2) of this subsection, and the child is subsequently charged with having committed 1 or more offenses which offense or offenses occurred subsequent to the child having been declared a child in need of mandated institutional treatment, the Court shall conduct a hearing to determine whether the child is amenable to the rehabilitative processes of the Court pursuant to § 1010(c) of this title. "Offense" in this paragraph shall mean all offenses which would constitute a felony were the child charged as an adult under the laws of this State, with the exception of a charge of escape pursuant to subpart E of subchapter VI of Chapter 5 of Title 11;

(4) Whenever a child appears before the Court on charges which would constitute a felony were the child charged as an adult under the laws of this State, said child and any parent, guardian or custodian of said child who is present shall be specifically advised of the operation of this subsection;

(5) Nothing hereinbefore provided shall be construed as prohibiting the Court, upon petition and recommendation of the Department of Services for Children, Youth and Their Families, from securing for any child otherwise subject to the mandatory commitment provisions of this subsection such care and treatment as it deems necessary for diagnosed conditions of mental illness or retardation, provided that the provisions for such treatment shall not deter the Court from imposing such mandatory term of commitment as is applicable under this subsection unless the same shall be sooner suspended in accordance with paragraph (6) of this subsection;

(6) As used in this subsection, "child" shall mean any juvenile who is charged with an act or course of conduct occurring on or after the child's 14th birthday which causes this subsection to be applicable;

(7) A copy of each and every order or disposition of the Court respecting a child committed pursuant to this subsection shall be made available to the victim or victims of the delinquent acts giving rise to the commitment upon written request to the Court therefor.

(f) Following adjudication or election by the juvenile in lieu of trial pursuant to § 4177B of Title 21, the Court must order the Motor Vehicle Division of the Department of Transportation after an adjudication of delinquency in violation of § 4177 of Title 21, or election by the juvenile in lieu of trial pursuant to § 4177B of Title 21 to:

(1) Revoke or suspend the driving privileges or operator's license possessed by such child until that child reaches the age when legally allowed to consume intoxicating liquor. This revocation or suspension shall not be subject to waiver except after a minimum period of 6 months from the date of the license is received by the Motor Vehicle Division, and then only if the child successfully completes a course of instruction similar to that required by § 4177B of Title 21 and has demonstrated a critical need for the return of restricted driving privileges.

(2) A critical need shall include loss of a meaningful employment opportunity, or loss of a school opportunity, or any other urgent need of the child or the child's immediate family the continuation of which is critical to the best interests of the child but only if and for so long as no other member of the immediate family is realistically capable of satisfying such urgent need.

(3) The Division of Motor Vehicles shall promulgate such rules and regulations as are necessary to verify the existence of a critical need, to permit the return of only so much of the privileges as are necessary to reasonably satisfy such critical need.

(4) Any person whose driver's license has been revoked and to whom a conditional/restricted license has been issued, under this chapter, and who drives any motor vehicle upon the highways of this State contrary to the conditions placed upon such conditional/restricted license during the period of such conditional/restricted license, upon conviction thereof, shall be fined not less than $25 or more than $200.

(5) The Department, upon receiving a record of conviction of any person upon the charge of operating a motor vehicle in violation of the conditions imposed upon said conditional/restricted license during the period of such conditional/restricted license, shall forthwith direct such person to surrender said conditional/restricted license to the Department until the age when legally allowed to consume intoxicating liquor.

(g) A child who is adjudicated delinquent on charges which would constitute a violation of § 2701 of Title 21 if the child were charged as an adult shall be prohibited from receiving a temporary instruction permit or an operator's license until the later of the child's 17th birthday or 1 year from the date of adjudication.

(h) No adjudication upon the status of a child shall be deemed a conviction nor shall it be deemed to imply that a child is a criminal except as provided in § 1010 of this title, any other provision of this Code, any court rule or rule of procedure or otherwise as determined by any court to be warranted in the interest of justice.

(i) Neither the adjudication nor any evidence given in any case shall be admissible against such child in any future civil or criminal proceeding in any court except for the purpose of a presentence investigation ordered by this or any other court, or as provided for by any other provision of this Code, any court rule or rule of procedure or otherwise as determined by any court to be warranted in the interest of justice.

(j)(1) For the purpose of this subsection, the following definitions shall apply:

a. "Adjudication" or "adjudicated" -- for the purposes of this subsection (j), "adjudication" or "adjudicated" shall mean any type of adjudication of delinquency contained within the definition of "conviction" or "convicted" pursuant to Chapter 9 of Title 16, and shall include a probation before adjudication plea or admission, and a mental health or drug court deferred plea regardless of whether the plea or charge was subsequently discharged or dismissed under such programs.

b. "Facility" means any residential shelter, group home, foster home, treatment center, individualized residential treatment home ("IRT"), institution or any other place designated as a temporary or permanent residential placement for children located in the State, excluding accredited or licensed hospitals.

c. "Felony level offense" means any delinquent act constituting a felony under the laws of this State, any other state or the United States.

d. "Mixing" means placement by the Department of Services for Children, Youth and Their Families of any child charged with or adjudicated of a felony level juvenile offense, or adjudicated of any serious misdemeanor level juvenile offense, in the same facility with dependent or neglected children who have not committed or been charged with any delinquent act.

e. "Repeat offender" means any child adjudicated delinquent of 3 or more serious misdemeanor level juvenile offenses occurring within 24 months of the request for mixing.

f. "Serious misdemeanor level juvenile offense" means any delinquent act constituting the following misdemeanors or any court adjudicated violation of probation or juvenile aftercare or parole in which the underlying adjudication is any of the following misdemeanors, whether under the laws of this State, any similar laws in other states, or the United States:

Section 501 of Title 11 (Criminal Solicitation in the Third Degree)

Section 601 of Title 11 (Offensive Touching)

Section 602 of Title 11 (Menacing)

Section 611 of Title 11 (Assault in the Third Degree)

Section 621 of Title 11 (Terroristic Threatening)

Section 625 of Title 11 (Unlawfully Administering Drugs)

Section 628 of Title 11 (Vehicular Assault in the Second Degree)

Section 763 of Title 11 (Sexual Harassment)

Sections 764-765 of Title 11 (Indecent Exposure in the First or Second Degree)

Section 766 of Title 11 (Incest)

Section 767 of Title 11 (Unlawful Sexual Contact in the Third Degree)

Section 781 of Title 11 (Unlawful Imprisonment in the Second Degree)

Section 804 of Title 11 (Reckless Burning or Exploding)

Section 1102 of Title 11 (Endangering the Welfare of a Child)

Section 1251 of Title 11 (Escape in the Third Degree)

Section 1257 of Title 11 (Resisting Arrest With Force or Violence)

Section 1311 of Title 11 (Harassment)

Section 1341 of Title 11 (Lewdness)

Section 1443 of Title 11 (Carrying a Concealed Dangerous Instrument).

(2) No dependent or neglected child shall be placed in a secure or nonsecure detention or correctional facility unless charged with or found to have committed a delinquent act. Except for youth placed, detained, or sentenced pursuant to § 2103A or § 4204A of Title 11 and except for youth otherwise properly proceeded against as adults in Superior Court, no child shall be placed in an adult detention or adult correctional facility.

(3) There shall be no mixing unless the following requirements are met:

a. When a child is charged with or found to have committed a felony level juvenile offense or is a repeat offender, the Department of Services for Children, Youth and Their Families must obtain a court order authorizing such placement, after the Secretary or a Division Director of the Department of Services for Children, Youth and Their Families or their designee shall recommend such placement in writing. Before authorizing mixing, the Family Court must specifically find that the proposed placement of the child offender is not expected to present an unreasonable and unmanageable physical risk to other children in the facility and that the placement is not contrary to the best interests of the other children in the facility.

b. When a child who is not a repeat offender is found to have committed a serious misdemeanor level juvenile offense, no mixing shall occur unless the Secretary or a Division Director of the Department of Services for Children, Youth and Their Families, or their designee, after review of the case, certifies in writing that the proposed placement of the child offender is not expected to present an unreasonable and unmanageable physical risk to other children in the facility and that the placement is not contrary to the best interests of the other children in the facility.

(4)a. A court order approving mixing may be requested via a motion in a dependency/neglect proceeding or in the delinquency proceeding concerning the child who needs to be mixed. The court may decide such motion without a hearing, and such motions may be requested, heard and decided via oral motion to the court during any hearing or trial concerning the child.

b. Where the date of placement could not have been reasonably determined in advance of placement, facilities and agencies which are subject to this subsection (j) may provisionally place a child in such facility, pending a later determination by the Family Court or the Secretary or Division Director of the Department of Services for Children Youth and Their Families or their designee, whichever may be applicable. Where such provisional placement has been made, a request for mixing approval that requires a Family Court order under paragraph (j)(3)a. of this section shall be filed with the Family Court no later than the second business day after such placement is made. In all other provisional placements, the Secretary or Division Director or their designee shall make the written certifications required by this subsection (j) no later than the second business day after such placement is made.

(5) All placements which result in mixing shall be reviewed within 5 working days by the Department of Services for Children, Youth and Their Families. Subsequently, such placement shall be reviewed after 2 months, and regularly thereafter. The 2-month review shall be made by the Child Placement Review Board. The purpose of the review shall be to determine whether, under the placement, the child offender continues to not present an unreasonable and unmanageable physical risk to other children in the facility, and that such placement is not contrary to the best interests of the other children in the facility.

(k) Subject to the provisions governing amenability pursuant to § 1010 of this title, the Court shall commit a delinquent child to the custody of the Department of Services for Children, Youth and Their Families if the child who has been adjudicated delinquent by this Court of 1 or more offenses which would constitute either possession of a firearm during the commission of a felony or robbery first degree (where such offense involves the display of what appears to be a deadly weapon or involves the representation by word or conduct that the person was in possession or control of a deadly weapon or involves the infliction of serious physical injury upon any person who was not a participant in the crime) were the child charged as an adult under the laws of this State. Such child is declared a child in need of mandated institutional treatment, and this Court shall commit the child so designated to the Department of Services for Children, Youth and Their Families for at least a 12-month period of institutional confinement.

10 Del. C. 1953, § 937; 58 Del. Laws, c. 114, § 1; 59 Del. Laws, c. 307, § 1; 60 Del. Laws, c. 657, § 1; 60 Del. Laws, c. 658, §§ 1, 2; 61 Del. Laws, c. 334, § 3; 61 Del. Laws, c. 377, § 1; 62 Del. Laws, c. 331, §§ 1, 2; 63 Del. Laws, c. 87, § 1; 64 Del. Laws, c. 108, §§ 6, 8, 20, 22-24; 65 Del. Laws, c. 506, §§ 1, 2; 66 Del. Laws, c. 13, §§ 1, 3; 66 Del. Laws, c. 125, §§ 1-3; 66 Del. Laws, c. 234, § 3; 66 Del. Laws, c. 424, § 1; 67 Del. Laws, c. 410, §§ 1-5; 67 Del. Laws, c. 429, § 3; 69 Del. Laws, c. 335, § 1; 70 Del. Laws, c. 13, § 1; 70 Del. Laws, c. 102, § 1; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 445, § 1; 71 Del. Laws, c. 199, § 14; 72 Del. Laws, c. 77, § 1; 72 Del. Laws, c. 338, § 4; 73 Del. Laws, c. 408, § 3; 74 Del. Laws, c. 106, § 27; 74 Del. Laws, c. 110, §§ 2, 3, 138; 74 Del. Laws, c. 345, § 3; 75 Del. Laws, c. 369, §§ 1, 2; 75 Del. Laws, c. 390, § 1; 76 Del. Laws, c. 198, § 1; 77 Del. Laws, c. 327, § 210.;

§ 1009A. Probation before adjudication of delinquency.

After accepting an admission or a plea of nolo contendere to an act of delinquency, the court may, prior to entering an adjudication of delinquency, under § 1009 of this title and with the consent of the child and the State, stay the declaration of delinquency, defer further proceedings, and place the child on probation before adjudication subject to the same limitations and upon the same terms and conditions as are applied to adult criminal offenders in § 4218 of Title 11.

75 Del. Laws, c. 364, § 1.;

§ 1010. Proceeding against child as an adult; amenability proceeding; referral to another court.

(a) A child shall be proceeded against as an adult where:

(1) The acts alleged to have been committed constitute first or second degree murder, rape in the first degree or rape in the second degree, assault in the first degree, robbery in the first degree (where such offense involves the display of what appears to be a deadly weapon or involves the representation by word or conduct that the person was in possession or control of a deadly weapon or involves the infliction of serious physical injury upon any person who was not a participant in the crime and where the child has previously been adjudicated delinquent of 1 or more offenses which would constitute a felony were the child charged under the laws of this State) or kidnapping in the first degree, or any attempt to commit said crimes;

(2) The child is not amenable to the rehabilitative processes available to the Court;

(3) The child has previously been adjudicated delinquent of 1 or more offenses which would constitute a felony were he or she charged as an adult under the laws of this State, and has reached his or her 16th birthday and the acts which form the basis of the current allegations constitute 1 or more of the following offenses: conspiracy first degree, rape in the third degree, arson first degree, burglary first degree, trafficking in marijuana, cocaine, illegal drugs, methamphetamine, L.S.D. or designer drugs (where the child is alleged to have committed acts constituting a violation of either subparagraph b. or c. of paragraph (1), (2), (3), (4), (5), (6) or (7) of § 4753A(a) of Title 16, or a violation of § 4753A(a)(8)a.) or any attempt to commit any of the offenses set forth in this paragraph;

(4) The General Assembly has heretofore or shall hereafter so provide.

(b) In all cases specified in (a) the Court shall, upon application, hold a preliminary hearing and, if the facts warrant, thereafter refer the child to the Superior Court or to any other court having jurisdiction over the offense for trial as an adult.

(c)(1) In determining whether a child is amenable to the rehabilitative processes of the Court, the Court shall take into consideration, among others, the following factors which are deemed to be nonexclusive:

a. Whether, in view of the age and other personal characteristics of the child, the people of Delaware may best be protected and the child may best be made a useful member of society by some form of correctional treatment which the Family Court lacks power to assign; or

b. Whether it is alleged death or serious personal injury was inflicted by the child upon anyone in the course of commission of the offense or in immediate flight therefrom; or

c. Whether the child has been convicted of any prior criminal offense; or

d. Whether the child has previously been subjected to any form of correctional treatment by the Family Court; or

e. Whether it is alleged a dangerous instrument was used by the child; or

f. Whether other participants in the same offense are being tried as adult offenders.

(2) The Court shall defer further proceedings in the Family Court and shall conduct a hearing to determine whether the child is amenable to the rehabilitative process of the Court:

a. Upon motion of the Court, whenever a child is charged with delinquency;

b. Upon motion of the Attorney General, whenever a child has reached his or her 14th birthday and is thereafter charged with being delinquent; or

c. Whenever a child has reached his or her 14th birthday, and is thereafter charged in accordance with § 1009(c)(5) of this title.

(3) Notwithstanding any provision of this section or title to the contrary, any child who has previously been declared to be non-amenable to the rehabilitative processes of the Court pursuant to this section, or who has previously been the subject of a denied application for transfer pursuant to § 1011 of this title, and who thereafter is charged with being delinquent shall be referred to the Superior Court or to any other court having jurisdiction over the offense for trial as an adult.

If it decides that the child is amenable, it may proceed to hear the case. If it decides that the child is not amenable, it shall refer the child to the Superior Court or to any other court having jurisdiction over the offense for trial as an adult.

(d) Notwithstanding any provisions of this title to the contrary, in any case in which the Superior Court has jurisdiction over a child, the Court shall retain jurisdiction for purposes of sentencing and all other postconviction proceedings if any judge or jury shall find the child guilty of a lesser included crime following a trial or plea of guilty.

(e) Notwithstanding any provision of this section or title to the contrary, when a child has reached his or her 15th birthday and is thereafter charged with being delinquent by having committed any offense which would constitute a felony were he or she charged as an adult under the laws of this State, said offense occurring while the child was an escapee from any Level IV or V facility operated for or by the Department of Services for Children, Youth and Their Families, upon motion of the Attorney General, or upon its own motion, the Court shall defer further proceedings in the Family Court and shall conduct a hearing to determine whether the child should be referred to the Superior Court for trial as an adult. If, at the conclusion of the hearing, the Court finds that evidence demonstrates that there is a fair likelihood that the child may be convicted of the charge or charges, it shall refer the child to the Superior Court for trial as an adult. If, at the conclusion of the hearing, the Court determines that there is no fair likelihood of conviction, the case shall remain within the jurisdiction of the Family Court, subject to all other provisions of this section and title.

10 Del. C. 1953, § 938; 58 Del. Laws, c. 114, § 1; 60 Del. Laws, c. 657, § 2; 66 Del. Laws, c. 269, § 15; 69 Del. Laws, c. 213, § 2; 69 Del. Laws, c. 335, § 1; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 262, § 2; 70 Del. Laws, c. 263, § 1; 70 Del. Laws, c. 596, §§ 2-6; 70 Del. Laws, c. 598, §§ 1-3; 71 Del. Laws, c. 285, §§ 25, 26; 73 Del. Laws, c. 408, § 1; 74 Del. Laws, c. 106, §§ 28, 33; 75 Del. Laws, c. 195, § 2; 70 Del. Laws, c. 186, § 1.;

§ 1011. Transfer of cases from Superior Court to Family Court.

(a) In any case in which the Superior Court has jurisdiction over a child, the Attorney General may transfer the case to the Family Court for trial and disposition if, in the Attorney General's opinion, the interests of justice would be best served.

(b) Upon application of the defendant in any case wh