La. Admin. Code tit. 22 § XV-1329

Current through Register Vol. 50, No. 11, November 20, 2024

Section XV-1329 - Detention

A. For purposes of appointment of counsel, children are presumed to be indigent. The attorney shall meet with a detained child client within 48 hours of notice of appointment or before the continued custody hearing, whichever is earlier, and shall take other prompt action necessary to provide quality representation, including:

1. personally reviewing the well-being of the child client and the conditions of the facility, and ascertaining the need for any medical or mental health treatment;

2. ascertaining whether the child client was arrested pursuant to a warrant or a timely determination of probable cause by a judicial officer;

3. making a motion for the release of the child client where no determination of probable cause has been made by a judicial officer within 48 hours of arrest or where the child client is held for on misdemeanor allegations committed before the age of 13; and

4. invoking the protections of appropriate constitutional provisions, federal and state laws, statutory provisions, and court rules on behalf of the child client, and revoking any waivers of these protections purportedly given by the child client, as soon as practicable via a notice of appearance or other pleading filed with the state and court.

B. Where the child client is detained, the attorney shall:

1. be familiar with the legal criteria for determining pre-adjudication release and conditions of release, and the procedures that will be followed in setting those conditions, including but not limited to the use and accuracy of any risk assessment instruments;

2. be familiar with the different types of preadjudication release conditions the court may set and whether private or public agencies are available to act as a custodian for the child client's release; and

3. be familiar with any procedures available for reviewing the judge's setting of bail.

C. The attorney shall attempt to secure the preadjudication release of the child client under the conditions most favorable and acceptable to the client unless contrary to the expressed wishes of the child client.

D. If the child client is detained, the attorney should try to ensure, by oral or written motion prior to any initial court hearing, that the child client does not appear before the judge in inappropriate clothing, shackles or handcuffs. If a juvenile court persists in the indiscriminate shackling of juvenile delinquents, the attorney should consider seeking supervisory review from an appellate court.

E. The attorney should determine whether a parent or other adult is able and willing to assume custody of the child client. Every effort should be made to locate and contact such a responsible adult if none is present at the continued custody hearing.

F. The attorney should identify and arrange the presence of to have witnesses to testify in support of release. This may include a minister or spiritual advisor, teacher, relative, other mentor or other persons who are willing to provide guidance, supervision and positive activities for the youth during release.

G. If the juvenile is released, the attorney should fully explain the conditions of release to the child client and advise him or her of the potential consequences of a violation of those conditions in developmentally appropriate language. If special conditions of release have been imposed (e.g., random drug screening) or other orders restricting the client's conduct have been entered (e.g., a no contact order), the client shall be advised of the legal consequences of failure to comply with such conditions in developmentally appropriate language.

H. The attorney shall be familiar with the detention facilities, particularly with any deficiencies related to the conditions of confinement and services available therein, and with the availability of community placements and services that could serve as alternatives to detention available for placement.

I. Where the child client is detained and unable to obtain pre-adjudication release, the attorney should be aware of any special medical, mental health, education and security needs of the child client and, in consultation with the child client, request that the appropriate officials, including the court, take steps to meet those special needs.

J. Following the continued custody hearing, the attorney should continue to advocate for release or expeditious placement of the child client. If the child client is not released, he or she should be advised of the right to have the placement decision reviewed or appealed.

K. Whenever the child client is held in some form of preadjudication detention, the attorney should visit the child client at least every two weeks and personally review his or her well-being, the conditions of the facility, and the opportunities to obtain release. Attorneys representing a child client who is held in a facility outside of the jurisdiction should consider using alternative methods of communication to the extent appropriate.

L. Whenever the child client is held in some form of preadjudication detention, the attorney should be prepared for an expedited adjudicatory hearing.

M. Where the child client is not able to obtain release under the conditions set by the court, counsel should consider pursuing modification of the conditions of release under the procedures available.

N. If the court sets conditions of release which require the posting of monetary bond or the posting of real property as collateral for release, counsel should strongly advocate that the court consider the presumptive indigent status of the juvenile and set a reasonable monetary bond within the family's ability to pay. Counsel should argue for an individualized bail amount, as opposed to a preset bail schedule used for adult offenders, and argue the bail criteria found in Children's Code article 824.

O. If the court sets conditions of release which require the posting of monetary bond or the posting of real property as collateral for release, counsel should make sure the child client understands the available options and the procedures that must be followed in posting such assets. Where appropriate, counsel should advise the child client and others acting in his or her behalf how to properly post such assets.

P. The lawyer should never personally guarantee the attendance or behavior of the child client or any other person, whether as surety on a bail bond or otherwise.

La. Admin. Code tit. 22, § XV-1329

Promulgated by the Office of the Governor, Public Defender Board, LR 37:2603 (September 2011), Amended LR 45407 (3/1/2019).

AUTHORITY NOTE: Promulgated in accordance with R.S. 15:148