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Rule 123.05 – Protective Custody Hearing

May 13, 2021 | Family Law, Missouri

a. The juvenile officer shall give notice orally or, if possible, in writing of the date, time and place of the protective custody hearing. Notice shall be provided to all parties and the guardian ad litem. The court appointed special advocate for the juvenile and the current foster parents, or any pre-adoptive parent or relative currently providing care for the juvenile, shall also be provided with such notice.
b. The inability of the juvenile officer to notify any party or other individual designated in Rule 123.05 a of the protective custody hearing, or the absence of any party or such individual at the protective custody hearing, shall not prevent the court from conducting the protective custody hearing as scheduled.
c. Upon the motion of any party or upon its own motion, the court may continue the protective custody hearing to a date not later than 14 days from the date the juvenile was taken into judicial custody. Any continuance shall be supported by written findings, or specific findings on the record, detailing the compelling extenuating circumstances justifying the continuance.
d. At the protective custody hearing, the court shall inform the juvenile’s parents, guardian or custodian of the right to counsel, including the right to appointed counsel pursuant to Rule 115.03.
e. The protective custody hearing shall be held on the record. The procedure to be followed at the hearing shall be determined by the court and may be as formal or informal as the court considers appropriate, consistent with constitutional and statutory requirements. The court may take testimony or receive evidence. Any written reports or social records to be offered at the protective custody hearing shall be available to all parties at or prior to the protective custody hearing.
f. At the protective custody hearing, the court shall determine and make findings on the following issues:

(1) whether the juvenile can safely return home immediately; and
(2) either:

(A) whether the children’s division made reasonable efforts to prevent or eliminate the need for removal of the juvenile from the home; or
(B) whether an emergency required the juvenile to be taken into judicial custody and that, as a result, the children’s division is deemed to have made reasonable efforts to prevent or eliminate the need for removal of the juvenile from the home; and
(3) whether continuation of the juvenile in the home is contrary to the welfare of the juvenile.
g. At the protective custody hearing, the court also shall consider and enter orders, as appropriate, on the following issues:

(1) whether a guardian ad litem has been appointed for the juvenile;
(2) whether a court appointed special advocate should be appointed for the juvenile;
(3) whether the parents, guardian or custodian of the juvenile are entitled to appointed counsel;
(4) whether a parent, guardian or custodian requires a guardian ad litem because of age or mental status;
(5) whether the paternity of the juvenile has been previously established;
(6) whether any absent parent, guardian or custodian of the juvenile has received notice of the protective custody hearing;
(7) whether there is an appropriate relative or other providers with whom the juvenile can be placed;
(8) whether the proposed placement for the juvenile is the most appropriate placement, consistent with the best interests and needs of the juvenile;
(9) whether arrangements should be made for visitation by the juvenile with the juvenile’s parents, guardian or custodian, siblings and other family members;
(10) whether disruption of the juvenile’s schooling can be avoided;
(11) whether the juvenile has special needs that should be assessed to determine if services may need to be immediately provided;
(12) whether the children’s division has offered services to the juvenile’s parents, guardian or custodian; and
(13) whether the juvenile is an Indian child as defined in 25 U.S.C. section 1903.
h. At the conclusion of the protective custody hearing, the court shall:

(1) order the juvenile released pursuant to Rule 123.02; or
(2) order the juvenile placed into protective custody pending further proceedings.

Mo. R. Prac. P. Juv. Ct. & Fam. Ct. 123.05

Adopted May 20, 2009, eff. Jan. 1, 2010.

Comment

For a juvenile in the legal custody of the children’s division in a proceeding under subsection 1 of section 211.031, RSMo, to be eligible for Title IV-E funding, the Adoption and Safe Families Act requires a judicial determination:

(1) in the first court order that removes the juvenile from the home whether continuation of the juvenile in the home is contrary to the welfare of the juvenile; and

(2) no later than 60 days from the date of the removal of the juvenile from the home whether reasonable efforts were made, or deemed to have been made, to prevent or eliminate the need for removal of the juvenile from the home.

Under section 210.565, RSMo, grandparents who request consideration are given preference and first consideration for out-of-home placement, and a juvenile in out-of-home placement shall be placed with a relative whenever such placement is not contrary to the best interests of the juvenile.

Under section 211.177, RSMo, grandparents have a right to intervene if custody of a grandchild is in issue unless the court determines that such intervention is contrary to the best interests of the juvenile.

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