Chapter 4.6 Retaking/Return of Juveniles After Failed Transfer of Supervision

Retaking/Return of Juveniles After Failed Transfer of Supervision   

The fourth circumstance under which a juvenile may be returned pursuant to the compact arises when an ICJ transfer of supervision has failed.   There are four scenarios in which this can occur.  First, the sending state has absolute authority to retake a juvenile when notified of a violation.  Pursuant to ICJ Rule 5-103 (3), the decision of the sending state to retake a juvenile shall be conclusive and not reviewable within the receiving state…”  Id. at Rule 5-103(3).

Secondly, pursuant to ICJ Rule 5-103A(1)(a), the receiving state may determine supervision has failed when a juvenile is not detained and a legal guardian remains in the sending state. In this circumstance, the receiving state must have documented efforts or interventions to redirect the behavior, and one of the following must apply:

1. The juvenile no longer resides in the residence approved by the receiving state due to documented instances of violation of conditions of supervision; or
2. An alternative residence is determined to be in the best interest of the juvenile due to documented instances of violation of conditions of supervision and no viable alternatives have been located in the receiving state; or
3. An immediate, serious threat to the health and safety of the juvenile and/or others in the residence or community is identified.

Thirdly, the sending state must take action when a juvenile does not reside with a legal guardian and the person with whom the juvenile resides requests the juvenile be removed from his/her home.. Id. at Rule 5-103A(1)(b).

Fourthly, the receiving state can determine that a juvenile who is a student or resides independently in the receiving state has a failed transfer of supervision due to documented instances of violations of conditions of supervision, when the receiving state has documented efforts or interventions to redirect the behavior. Id. at Rule 5-103A(1)(c).

In all such cases the receiving state must notify the sending state of the determination using the Form IX, Failed Supervision Report, which must contain:

1. Details regarding how the supervising agent determined supervision in the receiving state failed; and
2. Description of efforts or interventions to redirect behavior or maintain current residence; and
3. Any pending charges in the receiving state.

The sending state must respond within ten (10) business days and either secure alternative living arrangements or return the juvenile within ten (10) business days. Id. at Rule 5-103A(3).

It is clear that under ICJ Rule 5-101(1) a receiving state can apply any standard which is applied to its own juveniles in the evaluation of a particular transfer, and under the provisions of ICJ Rule 4-102(2), both the sending and receiving states have the authority to enforce the terms of probation and parole including any appropriate sanctions to be imposed. See ICJ Ad. Op. 01-2010 (Interstate Comm’n for Juveniles 2010).

If it is necessary to retake a juvenile whose transfer of supervision has failed and the Form VI, Application for Services and Waiver, has the appropriate signatures, no further court procedures are required for the juvenile’s return.  ICJ Rule 5-103(3)(b) (Interstate Comm’n for Juveniles 2024). Upon notification to the receiving state’s ICJ Office, officers of the sending state are permitted to enter the receiving state, or any other state to which the juvenile has absconded, in order to retake the juvenile. Pursuant to the Compact and ICJ Rule 5-103, where there has been a waiver of formal extradition proceedings, officers need only establish their authority and the identity of the juvenile.  Once the officers’ authority is established, authorities in a receiving state may not prevent, interfere with, or otherwise hinder the transportation of the juvenile back to the sending state.  Id. at Rule 5-103.  Interference by court officials would constitute a violation of the ICJ and its Rules.

Alternatively, a warrant may be issued, and the supervising state (receiving state) shall honor the warrant. In such circumstances, juveniles shall be apprehended and detained, pending return to the sending state. Courts have routinely recognized the right of a receiving state to arrest and detain a juvenile based on such a request from a sending state.  See, e.g., State ex rel. Ohio Adult Parole Auth. v. Coniglio, 610 N.E.2d 1196 (Ohio Ct. App. 1993) (offender cannot be admitted to bail pending retaking); Crady v. Cranfill, 371 S.W.2d 640 (Ky. Ct. App. 1963) (detention of offenders proper as only courts in the sending state can determine the status of their jurisdiction over the offender).This provision extends to all juveniles transferred under the compact, including non-adjudicated juveniles who have a deferred adjudication in the sending state. See ICJ Ad. Op. 04-2011 (Interstate Comm’n for Juveniles 2011) (“ICJ Rule 5-103 governs the return of a juvenile to the sending state when an ICJ supervision has failed. The text of the rule does not distinguish between a non-adjudicated juvenile and any other juvenile who is subject to transfer of supervision under the ICJ.”) 

The sending state is required to return the juvenile in such cases within five (5) business days upon receiving notice of the failed transfer of supervision, in a safe manner, pursuant to ICJ Rules 7-102: Public Safety and 7-107: Airport Supervision. See ICJ Rule 5-103(3)(d) (Interstate Comm’n for Juveniles 2024).  With limited exceptions, the decision to retake a juvenile rests solely in the discretion of the sending state. Id. However, if the juvenile is suspected of having committed a criminal offense or an act of juvenile delinquency in the receiving state, the sending state may not retake the juvenile without prior consent from authorities in the receiving state, until discharged from prosecution, or other form of proceeding, imprisonment, detention, or supervision. Id. at Rule 5-103(3)(a).

PRACTICE NOTE:

A juvenile arrested and detained for violating the terms and conditions of supervision may have certain due process rights.  If the sending state intends to use the juvenile’s violations in the receiving state as the basis for possibly revoking the juvenile’s conditional release, U.S. Supreme Court decisions may require that the sending and receiving states comply with various hearing requirements. See Morrissey v. Brewer and Gagnon v. Scarpelli infra at Section 4.6.1.

In addition to specific rule authorization cited above, public policy justifies the arrest of an out-of-state juvenile notwithstanding the domestic law of the receiving state.  The purpose of the ICJ is not to regulate the transfer and return of juveniles simply for the sake of regulation.  Rather, regulating the movement of juveniles fulfills the critical purposes of promoting public safety and protecting the rights of crime victims.  See Interstate Compact for Juveniles, art. I (2008).  All activities of the Commission and the member states are directed at promoting these two overriding purposes.  Member states, their courts and criminal justice agencies are required to take all necessary action to “effectuate the Compact’s purposes and intent.”  Id. at art. VII, § A(2).