(a) Conduct of detention hearing (§§ 635, 636)
The court must consider the written report of the probation officer and any other evidence and may examine the child, any parent or guardian, or any other person with relevant knowledge of the child.
(Subd (a) adopted effective January 1, 2007.)
(b) Written detention report (§§ 635, 636)
If the probation officer has reason to believe that the child is at risk of entering foster care placement, the probation officer must submit a written report to the court that includes the following:
(1) The reasons the child has been removed;
(2) Any prior referral for abuse or neglect of the child and any prior filing of a petition regarding the child under section 300;
(3) The need, if any, for continued detention;
(4) Available services to facilitate the return of the child;
(5) Whether there are any relatives able and willing to provide effective care and control over the child;
(6) Documentation that continuance in the home is contrary to the child's welfare; and
(7) Documentation that reasonable efforts were made to prevent or eliminate the need for removal of the child from the home and documentation of the nature and results of the services provided.
(Subd (b) amended and relettered effective January 1, 2007; adopted as subd (a) effective January 1, 2001; previously amended effective July 1, 2002.)
(c) Grounds for detention (§§ 625.3, 635, 636)
(1) The child must be released unless the court finds that continuance in the home of the parent or legal guardian is contrary to the child's welfare, and one or more of the following grounds for detention exist:
(A) The child has violated an order of the court;
(B) The child has escaped from a commitment of the court;
(C) The child is likely to flee the jurisdiction of the court;
(D) It is a matter of immediate and urgent necessity for the protection of the child; or
(E) It is reasonably necessary for the protection of the person or property of another.
(2) If the child is a dependent of the court under section 300, the court's decision to detain must not be based on the child's status as a dependent of the court or the child welfare services department's inability to provide a placement for the child.
(3) The court may order the child placed on home supervision under the conditions stated in sections 628.1 and 636, or detained in juvenile hall or in a suitable place designated by the court.
(4) If the court orders the release of a child who is a dependent of the court under section 300, the court must order the child welfare services department either to ensure that the child's current caregiver takes physical custody of the child or to take physical custody of the child and place the child in a licensed or approved placement.
(Subd (c) amended effective January 1, 2016; adopted as subd (a); previously amended effective July 1, 2002;previously amended and relettered as subd (b) effective January 1, 2001, and as subd (c) effective January 1, 2007.)
(d) Required determinations before detention
Before detaining the child, the court must determine whether continuance in the home of the parent or legal guardian is contrary to the child's welfare and whether there are available services that would prevent the need for further detention. The court must make these determinations on a case-by-case basis and must state the evidence relied on in reaching its decision.
(1) If the court determines that the child can be returned to the home of the parent or legal guardian through the provision of services, the court must release the child to the parent or guardian and order that the probation department provide the required services.
(2) If the child cannot be returned to the home of the parent or legal guardian, the court must state the facts on which the detention is based.
(Subd (d) amended effective January 1, 2016; adopted as subd (c) effective July 1, 2002; previously amended and relettered as subd (d) effective January 1, 2007.)
(e) Required findings to support detention (§ 636)
If the court orders the child detained, the court must make the following findings on the record and in the written order. The court must reference the probation officer's report or other evidence relied on to make its determinations:
(1) Continuance in the home of the parent or guardian is contrary to the child's welfare;
(2) Temporary placement and care is the responsibility of the probation officer pending disposition or further order of the court; and
(3) Reasonable efforts have been made to prevent or eliminate the need for removal of the child, or reasonable efforts were not made.
(Subd (e) amended effective January 1, 2016; adopted as subd (b); previously relettered as subd (c) effective January 1, 2001; previously amended and relettered as subd (d) effective July 1, 2002, and as subd (e) effective January 1, 2007.)
(f) Required orders to support detention (§ 636)
If the court orders the child detained, the court must make the following additional orders:
(1) As soon as possible, the probation officer must provide services that will enable the child's parent or legal guardian to obtain such assistance as may be needed to effectively provide the care and control necessary for the child to return home; and
(2) The child's placement and care must be the responsibility of the probation department pending disposition or further order of the court.
(Subd (f) relettered effective January 1, 2007; adopted as subd (e) effective July 1, 2002.)
(g) Factors-violation of court order
Regarding the ground for detention in (c)(1)(A), the court must consider:
(1) The specificity of the court order alleged to have been violated;
(2) The nature and circumstances of the alleged violation;
(3) The severity and gravity of the alleged violation;
(4) Whether the alleged violation endangered the child or others;
(5) The prior history of the child as it relates to any failure to obey orders or directives of the court or probation officer;
(6) Whether there are means to ensure the child's presence at any scheduled court hearing without detaining the child;
(7) The underlying conduct or offense that brought the child before the juvenile court; and
(8) The likelihood that if the petition is sustained, the child will be ordered removed from the custody of the parent or guardian at disposition.
(Subd (g) amended effective July 1, 2023; adopted as subd (c); previously relettered as subd (d) effective January 1, 2001; previously amended and relettered as subd (f) effective July 1, 2002, and as subd (g) effective January 1, 2007.)
(h) Factors-escape from commitment
Regarding the ground for detention in (c)(1)(B), the court must consider whether or not the child:
(1) Was committed to a county juvenile home, ranch, camp, forestry camp, secure youth treatment facility, or juvenile hall; and
(2) Escaped from the facility or the lawful custody of any officer or person in which the child was placed during commitment.
(Subd (h) amended effective July 1, 2023; adopted as subd (d); previously relettered as subd (e) effective January 1, 2001; amended and relettered as subd (g) effective July 1, 2002; previously amended effective January 1, 2006; previously amended and relettered as subd (h) effective January 1, 2007)
(i) Factors-likely to flee
Regarding the ground for detention in (c)(1)(C), the court must consider whether or not:
(1) The child has previously fled the jurisdiction of the court or failed to appear in court as ordered;
(2) There are means to ensure the child's presence at any scheduled court hearing without detaining the child;
(3) The child promises to appear at any scheduled court hearing;
(4) The child has a prior history of failure to obey orders or directions of the court or the probation officer;
(5) The child is a resident of the county;
(6) The nature and circumstances of the alleged conduct or offense make it appear likely that the child would flee to avoid the jurisdiction of the court;
(7) The child's home situation is so unstable as to make it appear likely that the child would flee to avoid the jurisdiction of the court; and
(8) Absent a danger to the child, the child would be released on modest bail or own recognizance were the child appearing as an adult in adult court.
(Subd (i) amended effective July 1, 2023; adopted as subd (e); previously relettered as subd (f) effective January 1, 2001; previously amended and relettered as subd (h) effective July 1, 2002, and as subd (i) effective January 1, 2007.)
(j) Factors-protection of child
Regarding the ground for detention in (c)(1)(D), the court must consider whether or not:
(1) There are means to ensure the care and protection of the child until the next scheduled court appearance;
(2) The child is addicted to or is in imminent danger from the use of a controlled substance or alcohol; and
(3) There exist other compelling circumstances that make detention reasonably necessary.
(Subd (j) amended effective July 1, 2023; adopted as subd (f); previously relettered as subd (g) effective January 1, 2001; previously amended and relettered as subd (i) effective July 1, 2002, and as subd (j) effective January 1, 2007.)
(k) Factors-protection of person or property of another
Regarding the ground for detention in (c)(1)(E), the court must consider whether or not:
(1) The alleged offense involved physical harm to the person or property of another;
(2) The prior history of the child reveals that the child has caused physical harm to the person or property of another or has posed a substantial threat to the person or property of another; and
(3) There exist other compelling circumstances that make detention reasonably necessary.
(Subd (k) amended effective July 1, 2023; adopted as subd (g); previously relettered as subd (h) effective January 1, 2001; previously amended and relettered as subd (j) effective July 1, 2002, and as subd (k) effective January 1, 2007.)
(l) Restraining orders
As a condition of release or home supervision, the court may issue restraining orders as stated in rule 5.630 or orders restraining the child from any or all of the following:
(1) Molesting, attacking, striking, sexually assaulting, or battering, or from any contact whatsoever with an alleged victim or victim's family;
(2) Presence near or in a particular area or building; or
(3) Associating with or contacting in writing, by phone, or in person any adult or child alleged to have been a companion in the alleged offense.
(Subd (l) amended effective January 1, 2016; adopted as subd (i); previously relettered as subd (j) effective January 1, 2001; previously amended and relettered as subd (k) effective July 1, 2002, and as subd (l) effective January 1, 2007.)
Rule 5.760 amended effective July 1, 2023; repealed and adopted as rule 1475 effective January 1, 1998; previously amended effective January 1, 2001, July 1, 2002, January 1, 2006, and January 1, 2016; previously amended and renumbered as rule 5.760 effective January 1, 2007.