4.3Requirements of the Juvenile Diversion Act
The Juvenile Diversion Act, MCL 722.821 et seq., defines “diversion” as follows:
“‘Divert’ or ‘diversion’ means the placement that occurs when a law enforcement agency makes a formally recorded investigation or apprehension for an act by a minor that if a petition were filed with the court would bring that minor within [MCL 712A.2(a) (governing Family Division jurisdiction over violations of law or ordinance and certain status offenses)], and instead of petitioning the court or authorizing a petition, either of the following occurs:
“(i) The minor is released into the custody of the minor’s parent, guardian, or custodian and the investigation is discontinued.
(ii) The minor and the minor’s parent, guardian, or custodian agree to work with a person or public or private organization or agency that will assist the minor and the minor’s family in resolving the problem that initiated the investigation.” MCL 722.822(b).
The Family Division may “establish or assist in developing a program or programs within the county to prevent delinquency and provide services to act upon reports submitted to the court” relative to juveniles who do not require formal court jurisdiction but otherwise fall within the jurisdictional requirements of MCL 712A.2(a) (violations of law or ordinance and certain status offenses). MCL 712A.2(e). Such services can be used only if they are voluntarily accepted by the juvenile and his or her parents, guardian, or custodian. Id.
A.Offenses Precluding the Use of Diversion
Pursuant to MCL 722.822(e) and MCL 722.823(3), juveniles accused of or charged with any of the following “specified juvenile violations”1 must not be diverted:
•first-degree arson, MCL 750.72;
•second-degree arson, MCL 750.83;
•assault with intent to maim, MCL 750.86;
•assault with intent to rob while armed, MCL 750.89;
•attempted murder, MCL 750.91;
•first-degree murder, MCL 750.316;
•second-degree murder, MCL 750.317;
•kidnapping, MCL 750.349;
•first-degree criminal sexual conduct, MCL 750.520b;
•armed robbery, MCL 750.529;
•carjacking, MCL 750.529a;
•stealing from bank, safe, vault, or other depository, MCL 750.531;
•assault with intent to do great bodily harm less than murder or assault by strangulation or suffocation, MCL 750.84, if the juvenile is armed with a dangerous weapon;
•breaking and entering a dwelling with intent to commit a felony, larceny, or assault, entering a dwelling without permission with intent to commit a felony, larceny, or assault, or breaking and entering a dwelling or entering a dwelling without permission and committing a felony, larceny, or assault at any time while entering, present in, or exiting the dwelling, MCL 750.110a(2), if the juvenile is armed with a dangerous weapon;
•escape or attempted escape from a high-security or medium-security juvenile facility operated by the department or a county juvenile agency or a high-security facility operated by a private agency under contract with the department or a county juvenile agency, MCL 750.186a;
•manufacturing, creating, delivering, or possessing with intent to manufacture, create, or deliver a controlled substance, prescription form, or counterfeit prescription form, MCL 333.7401(2)(a)(i);
•unlawful possession of a controlled substance, MCL 333.7403(2)(a)(i);
•attempt, conspiracy, or solicitation to commit a specified juvenile violation described above, MCL 712A.2(a)(1)(E)-(G);
•a lesser included offense of a violation described in MCL 712A.2(a)(1)(A)-(G) if the individual is charged with a violation described in MCL 712A.2(a)(1)(A)-(G), MCL 712A.2(a)(1)(H);
•another violation arising out of the same transaction as a violation described in MCL 712A.2(a)(1)(A)-(G) if the individual is charged with a violation described in MCL 712A.2(a)(1)(A)-(G), MCL 712A.2(I);
•felonious assault in a weapons free school zone, MCL 750.82(2);
•manslaughter, MCL 750.321;
•mayhem, MCL 750.397;
•second-degree criminal sexual conduct, MCL 750.520c.
B.Factors to Determine Whether to Divert a Juvenile
Before a minor may be diverted, all of the following factors must be evaluated:
“(a) The nature of the alleged offense.
(b) The minor’s age.
(c) The nature of the problem that led to the alleged offense.
(d) The minor’s character and conduct.
(e) The minor’s behavior in school, family, and group settings.
(f) Any prior diversion decisions made concerning the minor and the nature of the minor’s compliance with the diversion agreement.” MCL 722.824.
If the decision is made to divert a minor by referring the minor to a person or private or public organization or agency, a conference must first be held with the minor and the minor’s parent, guardian, or custodian to consider alternatives to the filing of a petition with the court or to the authorization of a petition. MCL 722.825(1). The law enforcement official or intake worker must notify the minor and the minor’s parent, guardian, or custodian of the proposed conference and all of the following:
“(a) That participation in the conference or resulting referral plan is voluntary.
(b) That an attorney may accompany the minor and the minor’s parent, guardian, or custodian at the conference.
(c) The alternative referral programs available and the criteria utilized to determine whether to file a petition with the court or to dispose of the petition with a referral.
(d) That if diversion is agreed to and the minor complies with the terms of the diversion agreement and the referral plan, a petition cannot be filed with the court, or if a petition has been filed, the petition cannot be authorized.” MCL 722.825(1).
MCL 722.825(2) provides:
“The conference to consider alternatives to the filing of a petition with the court or to consider alternatives to the authorization of a petition must not be held until after the questioning, if any, of the minor has been completed or after an investigation has been made concerning the alleged offense. Mention of, or promises concerning, diversion must not be made by a law enforcement official or court intake worker in the presence of the minor or the minor’s parent, guardian, or custodian during any questioning of the minor. Information divulged by the minor during the conference or after the diversion is agreed to, but before a petition is filed with the court or has been authorized, must not be used against the minor.”
If a diversion agreement is reached and it imposes conditions on the minor and will prevent a petition from being filed with the court or will prevent a petition from being authorized, the terms of the agreement “must be set forth in writing, dated, and signed by the law enforcement official or court intake worker, the minor, and the minor’s parent, guardian, or custodian.” MCL 722.825(3). The minor must complete the terms of the diversion agreement within three months, “unless the law enforcement official or court intake worker determines that a longer period is needed for the minor to complete a specific treatment program and documents this determination as required under [MCL 722.826].” MCL 722.825(3). “The diversion agreement must not include a term requiring the reimbursement of costs related to diversion services.” Id.
If an agreement is not reached at the diversion conference, “a petition may be filed with the court as provided by law and a petition may be authorized as provided by law.” MCL 722.825(4). If a petition is to be filed, it must be filed no later than 30 days after the diversion conference. Id.
E.Revocation of Diversion Agreement
If the minor complies with the terms of the diversion agreement and the referral plan, a petition cannot be filed with the court, or if a petition has been filed, the petition cannot be authorized by the court. MCL 722.825(1)(d). However, “[i]f the minor fails to comply with the terms of the diversion agreement and the referral plan, the law enforcement official or the court intake worker may revoke the diversion agreement. If the diversion agreement is revoked, a petition may be filed with the court as provided by law and a petition may be authorized as provided by law.” MCL 722.825(5).
Whenever a law enforcement official or court intake worker diverts a minor, the following information must be filed with the Family Division in the county in which the minor resides or is found:2
“(a) The minor’s name, address, and date of birth.
(b) The act or offense for which the minor was apprehended.
(c) The date and place of the act or offense for which the minor was apprehended.
(d) The diversion decision made, whether referred or released.
(e) The nature of the minor’s compliance with the diversion agreement.
(f) The time period to complete the terms of the diversion agreement and, if the period exceeds 3 months, the determination that a longer period is necessary for the minor to complete a specific treatment program.
(g) If the diversion is under [MCL 722.823(1)(b)], the results of the minor’s risk screening tool and mental health screening tool.” MCL 722.826(1).
If a diversion agreement is revoked under MCL 722.825(5), the law enforcement official or court intake worker must “file the fact of and reasons for the revocation” with the same court. MCL 722.826(2).
1 Specified juvenile violations are listed in MCL 712A.2(a)(1)(A)-(I).
2 See Section 21.4 and Section 21.7(B) for discussion of the confidentiality and destruction of diversion records.