Chapter 4: Diversion and Consent Calendar Procedures

In this chapter. . .

This chapter discusses two informal procedures that a law enforcement agency or the Family Division may use when a juvenile is apprehended for an offense or a complaint or petition is presented to the court but custody is not requested: diversion and the consent calendar. The procedures discussed in this chapter do not involve removal of a juvenile from parental custody. A law enforcement officer or the Family Division may divert a juvenile from formal court procedures and refer him or her to a public or private agency. In addition, with the consent of the juvenile and his or her parent(s), guardian, or legal custodian, the Family Division may place a case on its consent calendar. Use of these informal procedures is subject to restrictions imposed by the Crime Victim’s Rights Act and the Juvenile Diversion Act.1

4.1Family Division Options When a Complaint or Petition Is Filed

Under the Juvenile Code and related court rules, the Family Division of Circuit Court has several procedural options when a petition or complaint is filed in a delinquency proceeding.

A.Procedural Options Following Preliminary Inquiry (Detention Not Requested)

“When a petition is not accompanied by a request for detention of the juvenile, the court may conduct a preliminary inquiry.”2 MCR 3.932(A). Additionally, the Family Division may conduct a preliminary inquiry based on information submitted by any “person” (for example, a school official, a police officer, or a juvenile’s parent) that the juvenile has committed a status offense.3 See MCL 712A.11(1).4 However, “if at any time before disposition the court determines that a case should not proceed on the formal calendar but that the protective and supportive action by the court will serve the best interests of the juvenile and the public[,]” the court may transfer the matter to the consent calendar under MCL 712A.2f. MCL 712A.11(1); see also MCR 3.932(C)(1); MCR 3.932(D).

Before a case is placed on the consent calendar, the court must consider the results of the risk screening tool and mental health screening tool conducted on the juvenile pursuant to MCR 3.907. MCR 3.932(C)(2)(b). However, “[t]he court must not consider restitution when determining if the case should be placed on the consent calendar under MCL 712A.2f.” MCR 3.932(C)(2)(a).

Subject to procedural requirements imposed under the Crime Victim’s Rights Act (CVRA),5 MCL 780.751 et seq., the Family Division, at the preliminary inquiry, after completion and consideration of the results of the risk screening tool and mental health screening tool pursuant to MCR 3.907, the court may choose one of the following procedural avenues that will best serve the interests of the juvenile and the public:

•deny authorization of the petition;

•refer the matter to a public or private agency providing available services pursuant to the Juvenile Diversion Act, MCL 722.821 et seq.;6

•direct that the juvenile and his or her parent, guardian, or legal custodian be notified to appear so that the matter can be handled through further informal inquiry;

•proceed on the consent calendar7 under MCL 712A.2f; or

•authorize the filing of the petition, and proceed on the formal calendar under MCR 3.932(D).8

If the court elects to remove the case from the adjudicative process, it must comply with the procedures set forth in the CVRA. MCR 3.932(B), citing MCL 780.786b. “[A] case involving the alleged commission of an offense, as defined in [MCL 780.781], by a juvenile shall not be diverted, placed on the consent calendar, or made subject to any other prepetition or preadjudication procedure that removes the case from the adjudicative process unless the court gives written notice to the prosecuting attorney of the court’s intent to remove the case from the adjudicative process and allows the prosecuting attorney the opportunity to address the court on that issue before the case is removed from the adjudicative process.” MCL 780.786b(1). Before removing a case from the adjudicative process or before finalizing an informal disposition, any victim involved in the case is entitled to notice of the possible removal from adjudication, an opportunity to address the court at the removal hearing, and an opportunity to consult with the prosecuting attorney before the disposition is finalized. MCL 780.786b(1)-(2).9 Although the court must notify the prosecutor under MCL 780.786b(1), it does not require prosecutorial consent before the court can remove the case. See In re Diehl, 329 Mich App 671, 693-694 (2019) (because the statute authorizes trial courts “to remove a case from the adjudication process preadjudication, so long as the trial court complies with certain procedural requirements,” removal was proper where the petitions had not been adjudicated and the trial court provided written notice to the prosecution).

B.Procedural Options Following Preliminary Hearing

“The preliminary hearing must commence no later than 24 hours after the juvenile has been taken into court custody, excluding Sundays and holidays, as defined by MCR 8.110(D)(2), or the juvenile must be released.” MCR 3.935(A)(1).10

Subject to procedural requirements under the CVRA, MCR 3.935(B)(3) requires the Family Division, after reading the allegations in the petition and considering the results of a juvenile’s risk screening tool and mental health screening tool, to choose one of the following procedural avenues:

•dismiss the petition;

•refer the matter to alternative services under the Juvenile Diversion Act;

•proceed on the consent calendar under MCL 712A.2f; or

•continue with the preliminary hearing.

1    The Family Division may also take a plea under advisement in a juvenile delinquency case. This procedure is discussed in Section 8.7.

2    If the juvenile is in custody or if detention is requested, the court must conduct a preliminary hearing under MCR 3.935 rather than a preliminary inquiry under MCR 3.932. See Chapter 6 for discussion of preliminary inquiries and preliminary hearings.

3    See Section 2.3 for discussion of status offenses.

4    However, only a prosecuting attorney may file a petition with the court when the juvenile is alleged to have violated a statute or ordinance. MCL 712A.11(2).

5    See the Michigan Judicial Institute’s Crime Victim Rights Benchbook for a discussion of notice requirements under the CVRA when removing a case from the adjudicative process.

6    See Section 4.3 for discussion of the Juvenile Diversion Act.

7    See Section 4.4 for discussion of the consent calendar.

8    See Section 4.5 for discussion of the formal calendar.

9    See the Michigan Judicial Institute’s Crime Victim Rights Benchbook for more information regarding a victim’s rights prior to the use of informal procedures.

10    If a petition is not accompanied by a request for detention of the juvenile, the Family Division may conduct an informal preliminary inquiry under MCR 3.932 rather than a preliminary hearing under MCR 3.935. See Chapter 6 for discussion of preliminary inquiries and preliminary hearings.