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Rule 124.09 – Permanency Hearing

May 13, 2021 | Family Law, Missouri

a. A permanency hearing in a proceeding under subdivision (1) of subsection 1 of section 211.031, RSMo, shall be held within the time frame in Rule 124.01 b(2). The hearing may be as formal or informal as the court considers appropriate, consistent with constitutional and statutory requirements. The court may take judicial notice of the court’s file. The court shall receive evidence and may take testimony. The rules of evidence do not apply.
b. At such a permanency hearing, the court shall consider any written reports or social records presented by any party and additionally shall consider:

(1) the attempts of the children’s division to identify and locate any biological parent whose identity or location is unknown unless such efforts have been excused by the court;
(2) any permanency plan proposed for the juvenile;
(3) the evidence in support of, and in opposition to, each proposed permanency plan for the juvenile;
(4) the evidence concerning the continued need for the children’s division to engage in reasonable efforts to reunify the family;
(5) the evidence concerning the efforts of the children’s division to finalize the permanency plan in effect and whether those efforts have been reasonable; and
(6) the recommendations of the guardian ad litem and court appointed special advocate concerning which permanency plan is most appropriate for the juvenile.
c. In determining whether the children’s division has made reasonable efforts to finalize the permanency plan in effect and whether the permanency plan in effect continues to serve the best interests of the juvenile, the court shall consider:

(1) if the permanency plan in effect is reunification:

(A) whether the conditions or circumstances that caused removal of the juvenile from the home have been corrected; and
(B) whether the juvenile has been returned home or, if not, whether a date has been established for the juvenile to return home; or
(2) if the permanency plan in effect is adoption:

(A) whether the parents’ rights have been terminated, and:

(i) if not:

(a) whether a termination of parental rights petition has been filed;
(b) whether the parents have been served or signed a consent; and
(c) whether a date has been set for the termination of parental rights hearing; or
(ii) if so:

(a) whether an appropriate adoptive resource has been identified;
(b) whether the juvenile has been placed with an adoptive resource or, if not, whether a date has been established for the juvenile to be placed with an adoptive resource;
(c) whether an adoption petition has been filed; and
(d) whether a date has been set for the adoption hearing; or
(3) if the permanency plan in effect is guardianship:

(A) whether an appropriate guardianship resource has been identified;
(B) whether the juvenile has been placed with a guardianship resource or, if not, whether a date has been established for the juvenile to be placed with a guardianship resource;
(C) whether a guardianship petition has been filed; and
(D) whether a date has been set for the guardianship hearing; or
(4) if the permanency plan in effect is placement with a fit and willing relative:

(A) whether an appropriate relative resource has been identified; and
(B) whether the juvenile has been placed with a relative resource or, if not, whether a date has been established for the juvenile to be placed with a relative resource; or
(5) if the permanency plan in effect is placement in another planned permanent living arrangement:

(A) whether the children’s division has documented a compelling reason why another planned permanent living arrangement serves the best interests of the juvenile;
(B) whether another planned permanent living arrangement for the juvenile has been identified; and
(C) whether the juvenile has been placed in another planned permanent living arrangement or, if not, whether a date has been established for the juvenile to be placed in another planned permanent living arrangement.
d. At such a permanency hearing, the court shall:

(1) enter an order for the legal and physical custody of the juvenile and, if awarding legal and physical custody of the juvenile to a parent, guardian or custodian, relieve the children’s division of custody and, if appropriate, terminate jurisdiction;
(2) continue or, as appropriate, modify the social service plan and any court-ordered services;
(3) determine and make findings on the efforts of the children’s division to finalize the permanency plan in effect for the juvenile and whether those efforts have been reasonable;
(4) determine and, in accordance with the best interests of the juvenile, order:

(A) the permanency plan that is most appropriate for the juvenile; and
(B) the reasonable efforts required of the children’s division to finalize the permanency plan that is most appropriate for the juvenile; and
(5) schedule a permanency review hearing within the time frame in Rule 124.01 b(3).
e. In making the determinations and findings required under Rule 124.09 d, the court shall consider the following factors:

(1) the interaction and interrelationship of the juvenile with the foster parents, siblings and other significant parties;
(2) the juvenile’s adjustment to the foster home, school and community;
(3) the mental and physical health of all individuals involved, including any history of abuse; and
(4) the needs of the juvenile for a continuing relationship with the parents, and the ability and willingness of the parents to actively meet the needs of the juvenile.

Mo. R. Prac. P. Juv. Ct. & Fam. Ct. 124.09

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

Comment

This Rule 124.09 governs not only the initial permanency hearing but also each subsequent annual permanency hearing.

Annual permanency hearings are required, even after the parents’ rights have been terminated, until the juvenile attains age 21 or until the earlier entry of a legally final permanency order; i.e., return of the juvenile to the legal custody of a parent, adoption or guardianship.

Under the Adoption and Safe Families Act, a permanency hearing must be open to the participation of the juvenile, the parents, guardian or custodian of the juvenile, and the current foster parents, or any pre-adoptive parent or relative currently providing care for the juvenile, and may not be merely a paper review, ex parte hearing, or agreed upon order.

At the permanency hearing, the judicial officer should consult in person, where age appropriate, with the juvenile regarding the proposed permanency plan. At any permanency hearing addressing transition of the juvenile from foster care to independent living, the judicial officer should consult in person with the juvenile regarding the manner in which the children’s division can assist the juvenile’s transition from foster care, including the availability of resources under the Foster Care Independence Act of 1999.

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 within 12 months of the date the juvenile is considered to have entered foster care and at least annually thereafter of the reasonable efforts of the children’s division to finalize the permanency plan in effect. This Rule 124.09 recognizes that the court must make this determination at each permanency hearing. If reunification is not the permanency plan that is most appropriate for the juvenile, the permanency plan for the juvenile must be one of the following:

1. adoption;

2. guardianship;

3. placement with a fit and willing relative; or

4. another planned permanent living arrangement.

The Adoption and Safe Families Act requires, with certain exceptions, the filing of a petition for termination of parental rights by the end of the 15th month when a juvenile has been in foster care for 15 of the most recent 22 months, or within 60 days of a judicial determination that the children’s division is not required to make reasonable efforts to reunify the family because a parent has committed a statutorily identified crime.

There is no requirement under the Adoption and Safe Families Act or the Missouri statutes that an appropriate adoptive resource be identified or that the juvenile be placed with an appropriate adoptive resource before the court may find adoption to be the permanency plan that is most appropriate for the juvenile and order the filing of a petition for termination of parental rights.

The Adoption and Safe Families Act allows a juvenile’s permanency plan to be another planned permanent living arrangement only when the children’s division documents compelling reasons why the other permanency plans are not in the best interests of the juvenile.

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.

When placing a juvenile outside Missouri, including placing with a parent or relative, or terminating jurisdiction over a juvenile placed outside Missouri, in a proceeding under subdivision (1) of subsection 1 of section 211.031, RSMo, the court and all parties must comply with the Interstate Compact on the Placement of Children. See section 210.620, RSMo.

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Cross-reference: 42 U.S.C. ยง 677; Sections 211.032.4, 211.171.1, 210.720, 211.447.2, 211.447.3, and 211.447.4, RSMo. .