Juvenile Probation: History, Duties, Liabilities and Immunities Tom C. Rawlings Director, Office of the Child Advocate State of Georgia [email protected]

Juvenile Probation: History, Juvenile Probation: History, Duties, Liabilities and Duties, Liabilities and

ImmunitiesImmunities

Tom C. RawlingsTom C. RawlingsDirector, Office of the Child Director, Office of the Child

AdvocateAdvocateState of GeorgiaState of Georgia

[email protected]@gachildadvocate.orgwww.tomrawlings.com www.tomrawlings.com

A Quick History of ProbationA Quick History of Probation Two hundred years agoTwo hundred years ago

Child under the age of seven was considered an Child under the age of seven was considered an “infant” incapable of criminal intent “infant” incapable of criminal intent

Children as young as seven years could be held Children as young as seven years could be held criminally responsible and possibly imprisoned (with criminally responsible and possibly imprisoned (with adult offenders) or even executed for his offenses.adult offenders) or even executed for his offenses.

Prosecuting a child between the ages of seven and Prosecuting a child between the ages of seven and 14 required proof the child had judgment or 14 required proof the child had judgment or discernment;discernment;

When a child reached the age of 14, he was When a child reached the age of 14, he was presumed an adult with full discernment and presumed an adult with full discernment and responsibilityresponsibility

State did not often interfere in the relationship State did not often interfere in the relationship between parent and child.between parent and child.

A Quick History of ProbationA Quick History of Probation John Augustus (1785-1859), Father of John Augustus (1785-1859), Father of

ProbationProbation Member of an Abstinence Society that Member of an Abstinence Society that

believed drunks could be rehabilitated believed drunks could be rehabilitated through moral persuasionthrough moral persuasion

In 1841, bailed out a drunkard and In 1841, bailed out a drunkard and brought him back to court three weeks brought him back to court three weeks later sober.later sober.

Began an 18-year career as a Began an 18-year career as a volunteer probation officer.volunteer probation officer.

A Quick History of Probation A Quick History of Probation

Pre-1900: abandoned children Pre-1900: abandoned children (“foundlings”) warehoused in (“foundlings”) warehoused in “almshouses” and orphanages“almshouses” and orphanages

1840-1860: Huge influx of 1840-1860: Huge influx of immigrants over-populates immigrants over-populates New York City, disrupted New York City, disrupted family structures, tenements, family structures, tenements, diseasedisease

1853: Charles Lorring Brace 1853: Charles Lorring Brace starts the “Children’s Aid starts the “Children’s Aid Society” of New YorkSociety” of New York

1854-1930’s: “Orphan Trains” 1854-1930’s: “Orphan Trains” ferried 150,000+ westferried 150,000+ west

A Quick History of ProbationA Quick History of Probation

1874: 1874: Mary Ellen WilsonMary Ellen Wilson, 9, , 9, abandoned in New York City, abandoned in New York City, enslaved, beaten daily by her enslaved, beaten daily by her “foster mother”“foster mother” No laws to protect children, no No laws to protect children, no

rights, viewed as propertyrights, viewed as property Etta Wheeler got the American Etta Wheeler got the American

Society for the Prevention of Society for the Prevention of Cruelty to Animals to go to courtCruelty to Animals to go to court

Brooklyn court took protective Brooklyn court took protective custody, first ward of the courtcustody, first ward of the court

The beginning of theThe beginning of the child- child-welfarewelfare system as we know it system as we know it todaytoday


““I saw a child brought in … at the I saw a child brought in … at the sight of which men wept aloud, and I sight of which men wept aloud, and I heard the story of little Mary Ellen told heard the story of little Mary Ellen told … that stirred the soul of a city and … that stirred the soul of a city and roused the conscience of a world that roused the conscience of a world that had forgotten, and as I looked, I knew had forgotten, and as I looked, I knew I was where the first chapter of I was where the first chapter of children's rights was being writtenchildren's rights was being written” ” -- -- Jacob Riis, reporter, photo-journalistJacob Riis, reporter, photo-journalist

1875: 1875: Society for the Society for the Prevention of Cruelty to Prevention of Cruelty to ChildrenChildren chartered by Henry chartered by Henry Bergh (also ASPCA founder)Bergh (also ASPCA founder)

1922: 300+ SPCC chapters1922: 300+ SPCC chapters Mary Ellen was raised by her Mary Ellen was raised by her

rescuer’s sister, married at 24, 2 rescuer’s sister, married at 24, 2 children who were teachers, died children who were teachers, died at 92 in 1956.at 92 in 1956.


1899: First 1899: First Juvenile CourtJuvenile Court in Cook in Cook County, IL; rapid expansion, 46 County, IL; rapid expansion, 46 states with juvenile courts by 1915states with juvenile courts by 1915

The Traditional Concept:Doctrine of The Traditional Concept:Doctrine of “Parens Patriae,” in which Court is “Parens Patriae,” in which Court is “In Loco Parentis” for child whose “In Loco Parentis” for child whose parents cannot control.parents cannot control. Court as Big DaddyCourt as Big Daddy


1962: C.H. Kempe publishes “The battered-1962: C.H. Kempe publishes “The battered-child syndrome” in the Journal of the child syndrome” in the Journal of the American Medical AssociationAmerican Medical Association

1960’s and 1970’s: Explosion of interest in 1960’s and 1970’s: Explosion of interest in child abuse and neglect, medical & social-child abuse and neglect, medical & social-work work researchresearch

1969: 1969: Protecting the Child Victim of Sex Protecting the Child Victim of Sex Crimes Committed by AdultsCrimes Committed by Adults, Vincent de , Vincent de Francis, American Humane Society; Francis, American Humane Society; research, women’s movements, rape research, women’s movements, rape reform reveal prevalence of child reform reveal prevalence of child sexual sexual abuseabuse


1967: In re Gault, U.S. Supreme Court1967: In re Gault, U.S. Supreme Court Gerald Frances Gault charged with Gerald Frances Gault charged with

making obscene phone callsmaking obscene phone calls After a brief hearing without a defense After a brief hearing without a defense

attorney and without the usual attorney and without the usual formality of US adult criminal formality of US adult criminal proceedings, he was committed to a proceedings, he was committed to a juvenile detention center until his 21st juvenile detention center until his 21st birthday.birthday.

A Quick History of ProbationA Quick History of Probation In re Gault: Supreme Court’s DecisionIn re Gault: Supreme Court’s Decision

““The early conception of the Juvenile Court proceeding was The early conception of the Juvenile Court proceeding was one in which a fatherly judge touched the heart and one in which a fatherly judge touched the heart and conscience of the erring youth by talking over his problems, conscience of the erring youth by talking over his problems, by paternal advice and admonition, and in which, in extreme by paternal advice and admonition, and in which, in extreme situations, benevolent and wise institutions of the State situations, benevolent and wise institutions of the State provided guidance and help "to save him from a downward provided guidance and help "to save him from a downward career." Then, as now, goodwill and compassion were career." Then, as now, goodwill and compassion were admirably prevalent. But recent studies have, with surprising admirably prevalent. But recent studies have, with surprising unanimity, entered sharp dissent as to the validity of this unanimity, entered sharp dissent as to the validity of this gentle conception. . . . [I]t would be extraordinary if our gentle conception. . . . [I]t would be extraordinary if our Constitution did not require the procedural regularity and the Constitution did not require the procedural regularity and the exercise of care implied in the phrase "due process." Under exercise of care implied in the phrase "due process." Under our Constitution, the condition of being a boy does not justify our Constitution, the condition of being a boy does not justify a kangaroo court. The traditional ideas of Juvenile Court a kangaroo court. The traditional ideas of Juvenile Court procedure, indeed, contemplated that time would be available procedure, indeed, contemplated that time would be available and care would be used to establish precisely what the and care would be used to establish precisely what the juvenile did and why he did it--was it a prank of adolescence juvenile did and why he did it--was it a prank of adolescence or a brutal act threatening serious consequences to himself or or a brutal act threatening serious consequences to himself or society unless corrected”.society unless corrected”.

§ 15-11-24.2. Duties of probation officers; § 15-11-24.2. Duties of probation officers;

liabilityliability A probation officer:A probation officer:

(1) Shall make investigations, reports, and (1) Shall make investigations, reports, and recommendations to the court as directed by recommendations to the court as directed by this article;this article; (2) Shall receive and examine complaints (2) Shall receive and examine complaints and charges of delinquency, unruly conduct, and charges of delinquency, unruly conduct, or deprivation of a child for the purpose of or deprivation of a child for the purpose of considering the commencement of considering the commencement of proceedings under this article;proceedings under this article; (3) Shall supervise and assist a child placed (3) Shall supervise and assist a child placed on probation or in the protective supervision on probation or in the protective supervision or care of such probation officer by order of or care of such probation officer by order of the court or other authority of law;the court or other authority of law; (4) Shall make appropriate referrals to (4) Shall make appropriate referrals to other private or public agencies of the other private or public agencies of the community. . . .community. . . .


liabilityliability (5) May take into custody and detain a child who is under (5) May take into custody and detain a child who is under

the supervision or care of such probation officer as a the supervision or care of such probation officer as a delinquent, unruly, or deprived child if the probation officer delinquent, unruly, or deprived child if the probation officer has reasonable cause to believe that the child's health or has reasonable cause to believe that the child's health or safety or that of another is in imminent danger, or that the safety or that of another is in imminent danger, or that the child may abscond or be removed from the jurisdiction of child may abscond or be removed from the jurisdiction of the court, or when so ordered by the court pursuant to this the court, or when so ordered by the court pursuant to this article. A probation officer may not conduct accusatory article. A probation officer may not conduct accusatory proceedings against a child who is or may be under such proceedings against a child who is or may be under such probation officer's care or supervision;probation officer's care or supervision;

(6) Shall perform all other functions designated by this (6) Shall perform all other functions designated by this chapter or by order of the court pursuant thereto. Any of chapter or by order of the court pursuant thereto. Any of the functions specified in this Code section may be the functions specified in this Code section may be performed in another state if authorized by the court performed in another state if authorized by the court located in this state and permitted by the laws of the other located in this state and permitted by the laws of the other state; andstate; and

What’s the Frequency, What’s the Frequency, Kenneth?Kenneth?

Are probation officers Are probation officers judicial judicial officers or officers or executiveexecutive officers? officers?

Brown v. Scott (Georgia 1995):Brown v. Scott (Georgia 1995): Challenge to practice of Dekalb Police Challenge to practice of Dekalb Police

officers also serving as juvenile intake officers also serving as juvenile intake officersofficers

Held that police officers cannot Held that police officers cannot simultaneously serve as juvenile intake simultaneously serve as juvenile intake officers.officers.

Why not?Why not?

Brown v. Scott (Ga. 1995)Brown v. Scott (Ga. 1995) Intake officers are judicial. Why?Intake officers are judicial. Why?

The The intakeintake officer must determine whether the officer must determine whether the child is to be released or detained, prosecuted child is to be released or detained, prosecuted formally, or adjusted informally.formally, or adjusted informally.

In so doing, the In so doing, the intakeintake officer screens the officer screens the complaint and considers whether the court has complaint and considers whether the court has jurisdiction, and whether the complaint is jurisdiction, and whether the complaint is frivolous, or a petition should be filed. frivolous, or a petition should be filed.

This may result in a recommendation of dismissal, This may result in a recommendation of dismissal, referral to another agency for services, or other referral to another agency for services, or other appropriate action.appropriate action.

““We have no hesitation in concluding that in We have no hesitation in concluding that in performing these functions, the performing these functions, the juvenile intakejuvenile intake officer acts in a officer acts in a judicialjudicial capacity.” capacity.”

In Georgia, as in many states, a person In Georgia, as in many states, a person cannot constitutionally serve in two branches cannot constitutionally serve in two branches of government at the same time.of government at the same time.

ImmunityImmunity

Public officials and employees whose jobs Public officials and employees whose jobs are classified as are classified as "quasi-judicial""quasi-judicial" are are shielded from liability when they act in good shielded from liability when they act in good faith within the scope of their employment.faith within the scope of their employment.

A A quasi-judicialquasi-judicial position is one that involves position is one that involves the exercise of discretionary, rather than the exercise of discretionary, rather than ministerial, acts.ministerial, acts. Discretionary actions require personal Discretionary actions require personal

deliberation, decision, and judgmentdeliberation, decision, and judgment Ministerial actions require obedience to orders Ministerial actions require obedience to orders

or the performance of a mandated duty.or the performance of a mandated duty. Quasi-judicialQuasi-judicial actions include discretionary acts actions include discretionary acts

such as gathering information in connection with such as gathering information in connection with an investigation and making decisions based an investigation and making decisions based upon that information upon that information


liabilityliability (7) Other laws to the contrary (7) Other laws to the contrary

notwithstanding, no county juvenile notwithstanding, no county juvenile intake or probation officer or staff of intake or probation officer or staff of the Department of Juvenile Justice the Department of Juvenile Justice serving as juvenile intake or probation serving as juvenile intake or probation officer shall be liable for the acts of any officer shall be liable for the acts of any child not detained or taken into custody child not detained or taken into custody as provided in paragraph (5) of this as provided in paragraph (5) of this Code section when, in the judgment of Code section when, in the judgment of such officer, such detention or custody such officer, such detention or custody is not warranted.is not warranted.

Faile v. S.C. Dep't of Juvenile Justice, Faile v. S.C. Dep't of Juvenile Justice, 20022002

Child placed back in his home by Child placed back in his home by juvenile probation officer contrary to juvenile probation officer contrary to court’s ordercourt’s order

Assaulted his sibling, parents sued DJJAssaulted his sibling, parents sued DJJ Question: Did the probation officer Question: Did the probation officer

have quasi-judicial immunity?have quasi-judicial immunity? ““The United States Supreme Court extends The United States Supreme Court extends

absolute immunity to protect some quasi-absolute immunity to protect some quasi-judicial actors, such as prosecutors and judicial actors, such as prosecutors and witnesses, who perform judicial functions” witnesses, who perform judicial functions”

Faile v. S.C. Dep't of Juvenile Justice, Faile v. S.C. Dep't of Juvenile Justice, 2002 2002

South Carolina recognizes three exceptions to South Carolina recognizes three exceptions to judicial or quasi-judicial immunity.judicial or quasi-judicial immunity.

Judges and other officials are not entitled to Judges and other officials are not entitled to judicial immunity if: judicial immunity if: they did not have jurisdiction to act;they did not have jurisdiction to act; the act did not serve a judicial function;the act did not serve a judicial function; the suit is for prospective, injunctive relief only.the suit is for prospective, injunctive relief only.

Under the second exception, even judges are not Under the second exception, even judges are not insulated by judicial immunity when they act in an insulated by judicial immunity when they act in an administrative capacity. administrative capacity.

In determining whether an act is judicial, the Court In determining whether an act is judicial, the Court looks to the nature and function of the act.looks to the nature and function of the act.

Faile v. S.C. Dep't of Juvenile Justice, Faile v. S.C. Dep't of Juvenile Justice, 20022002

If the individual is acting pursuant to If the individual is acting pursuant to a direct court order, courts are more a direct court order, courts are more likely to grant quasi-judicial immunity likely to grant quasi-judicial immunity for that action. for that action.

““The placement of juveniles by a The placement of juveniles by a probation counselor is an probation counselor is an administrative function”administrative function”

Therefore, no quasi-judicial immunityTherefore, no quasi-judicial immunity

Mandated ReportersMandated Reporters

Are probation officers mandated Are probation officers mandated reporters in your state?reporters in your state?

What’s the penalty?What’s the penalty? What’s the immunity?What’s the immunity? Is there a civil cause of action?Is there a civil cause of action?

This Powerpoint Can Be This Powerpoint Can Be Yours!Yours!

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Documents

Juvenile Probation: History, Duties, Liabilities and Immunities Tom C. Rawlings Director, Office of the Child Advocate State of Georgia [email protected]