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Rule 128.01 – Presence and Exclusion of Juvenile and Juvenile’s Parents, Guardian or Custodian

May 13, 2021 | Family Law, Missouri

a. Except as provided in this Rule 128.01, in any proceeding under subdivision (2) or (3) of subsection 1 of section 211.031, RSMo, the juvenile and the juvenile’s parents, guardian or custodian shall have the right to be present at all times during any hearing.
b. No hearing, including a hearing to determine under Rule 129 whether the juvenile is a proper subject to be dealt with under the provisions of the juvenile code, may be commenced without the presence of the juvenile unless the juvenile’s presence is waived by counsel; provided, a detention hearing under Rule 127.08 may be commenced without the presence of the juvenile if the juvenile’s presence is waived by the juvenile’s counsel or the court determines the juvenile’s presence is not warranted.
c. After commencement of a hearing with the juvenile present, the subsequent voluntary absence of the juvenile shall not prevent the court from conducting the hearing to a conclusion.
d. The court may commence a hearing without the presence of the juvenile’s parents, guardian or custodian if, after proper service or notice, the juvenile’s parents, guardian or custodian fail to appear.
e. Except as otherwise provided by law, the court may exclude the juvenile’s parents, guardian or custodian from any part of a hearing for good cause, exceptional circumstances, or where exclusion will serve the best interests of the juvenile.
f. In determining whether to proceed without the presence of the juvenile’s parents, guardian or custodian, the court shall consider, among other things, the age and emotional maturity of the juvenile, whether the juvenile has counsel present, the relationship between the juvenile and the juvenile’s parents, guardian or custodian, the nature and probable value of the evidence that may be presented, and whether the juvenile’s parent, guardian or custodian has expressly requested to be present during the hearing.
g. Rule 128.01 shall not restrict the authority of the court to exclude any unruly or disruptive person from a hearing where exclusion is necessary to the orderly conduct of the hearing.

Mo. R. Prac. P. Juv. Ct. & Fam. Ct. 128.01

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

Comment

The authority of the court to proceed with the adjudication hearing on a petition or motion to modify in a proceeding under subdivision (2) or (3) of subsection 1 of section 211.031, RSMo, without the presence of the juvenile whose conduct is in question is limited. See In re Gault, 387 U.S. 1 (1967).

Upon conclusion of the adjudication hearing, if the dispositional hearing does not immediately follow, the court should order all parties to appear at the dispositional hearing and, when doing so, advise the juvenile that the failure of the juvenile to appear at the dispositional hearing without just cause constitutes a waiver of the juvenile’s right to be present at the dispositional hearing, and that the court may proceed and enter an order and judgment of disposition in the absence of the juvenile. See In the Interest of: S. H., 75 S.W.3d 286 (Mo. App. 2002).

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