Rule 123 | Custody

First Adopted: May 20, 2009

Most Recently Effective: January 01, 2010

Rule 123 | Rules of Practice and Procedure in Juvenile and Family Court Divisions of the Circuit Court | Part II: Rules Relating to Child Abuse and Neglect Proceedings | Custody

123.01 | When Juvenile May Be Taken Into Judicial Custody

a. A juvenile may be taken into judicial custody under subdivision (1) of subsection 1 of section 211.031, RSMo:

(1) pursuant to an order of court; or

(2) by a law enforcement officer or physician who has reasonable cause to believe that the juvenile is in imminent danger of suffering serious physical harm or a threat to life as a result of abuse or neglect if such person has reasonable cause to believe that such physical harm or threat to life may occur before a court can issue a temporary protective custody order; or

(3) by a juvenile officer as authorized by law if there is reasonable cause to believe that the juvenile is without proper care, custody, or support and that temporary protective custody is necessary to prevent personal harm to the juvenile.

b. The jurisdiction of the court attaches from the time the juvenile is taken into judicial custody.

Comment

This Rule 123.01 states the circumstances under which a juvenile may be taken into judicial custody under subdivision (1) of subsection 1 of section 211.031, RSMo.

When determining whether to take a juvenile into judicial custody, a law enforcement officer, physician and juvenile officer must be cognizant of the decision in Heartland Academy Community Church v. Waddle, 427 F.3d 525 (8th Cir. 2005).

Questioning of a juvenile taken into judicial custody by a juvenile officer or law enforcement officer in connection with a proceeding under subdivision (1) of subsection 1 of section 211.031, RSMo, regarding alleged abuse or neglect is governed by subsection 3 of section 211.059, RSMo.

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 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. Therefore, the court must make this determination in any order under which a juvenile is taken into judicial custody under Rule 123.01a(1).

Cross-reference: Section 211.131.3, RSMo.


(Adopted May 20, 2009, effective January 1, 2010.)

First Adopted: May 20, 2009

Most Recently Effective: January 01, 2010

Rule 123 | Rules of Practice and Procedure in Juvenile and Family Court Divisions of the Circuit Court | Part II: Rules Relating to Child Abuse and Neglect Proceedings | Custody

123.02 | Procedure Upon Law Enforcement Officer or Physician Taking Juvenile Into Judicial Custody

a. Any law enforcement officer or physician taking a juvenile into judicial custody pursuant to Rule 123.01a(2) shall notify immediately the juvenile officer and the children’s division of such action and undertake a reasonable attempt to notify the juvenile’s parents, guardian or custodian.

b. Any law enforcement officer or physician taking a juvenile into judicial custody shall submit to the juvenile officer as soon as practicable, but no later than 12 hours after taking the juvenile into judicial custody, a written report identifying the juvenile and stating the facts and circumstances that caused the law enforcement officer or physician to believe the juvenile was in imminent danger of suffering serious physical harm or a threat to life as a result of abuse or neglect and, if the juvenile is not released, the reasons the juvenile remains in judicial custody.

c. A juvenile taken into judicial custody pursuant to Rule 123.01 shall be released to the juvenile’s parent, guardian or custodian or other suitable person, as directed by the juvenile’s parent or guardian, unless temporary protective custody is authorized pursuant to Rules 123.03 and 123.04.

Comment

Rule 123.02a follows the present statute by requiring a reasonable attempt to notify a juvenile’s parents, guardian or custodian when the juvenile is taken into judicial custody.

Rule 123.02b requires a written report, rather than mere notification, to the juvenile officer. This written report provides the juvenile officer with a documentary basis for deciding whether to release the juvenile or hold the juvenile in judicial custody.

Further, Rule 123.02b adds the requirement that the report be submitted to the juvenile officer even if the juvenile is released so that the juvenile officer and, through the juvenile officer, the court will be apprised that a juvenile taken into judicial custody was subsequently released.

Cross-reference: Sections 210.125, 211.131, RSMo.


(Adopted May 20, 2009, effective January 1, 2010.)

First Adopted: May 20, 2009

Most Recently Effective: January 01, 2010

Rule 123 | Rules of Practice and Procedure in Juvenile and Family Court Divisions of the Circuit Court | Part II: Rules Relating to Child Abuse and Neglect Proceedings | Custody

123.03 | Temporary Protective Custody

a. Within 24 hours after a juvenile is taken into judicial custody, the court shall order that the juvenile be taken into temporary protective custody or released to the juvenile’s parent, guardian or custodian or other suitable person, as directed by the juvenile’s parent or guardian.

b. Temporary protective custody of a juvenile may be authorized only by court order.


(Adopted May 20, 2009, effective January 1, 2010.)

First Adopted: May 20, 2009

Most Recently Effective: January 01, 2010

Rule 123 | Rules of Practice and Procedure in Juvenile and Family Court Divisions of the Circuit Court | Part II: Rules Relating to Child Abuse and Neglect Proceedings | Custody

123.04 | Court Action to Place Juvenile in Temporary Protective Custody

a. An order for temporary protective custody shall be entered only upon:

(1) the filing of a petition or motion to modify; and

(2) a determination by the court that probable cause exists to believe that:

(A) the facts specified in the petition or motion to modify bring the juvenile within the jurisdiction of the court under subdivision (1) of subsection 1 of section 211.031, RSMo; and

(B) the conditions requiring judicial custody continue to exist.

b. When the court is presented with a petition or motion to modify requesting that a juvenile be placed in temporary protective custody, it shall examine the reasons therefor and immediately:

(1) appoint a guardian ad litem; and

(2) determine and make a finding on whether continuation of the juvenile in the home is contrary to the juvenile’s welfare; and

(3) either:

(A) order the juvenile released pursuant to Rule 123.02; or

(B) order the juvenile placed in temporary protective custody.

c. If the juvenile is placed in temporary protective custody, the court shall hold a protective custody hearing pursuant to Rule 123.05 within three days, excluding Saturdays, Sundays and legal holidays, of the date the juvenile is taken into judicial custody.

d. If the juvenile is released, the court shall hold a preliminary child welfare proceeding pursuant to Rule 123.07 within three days, excluding Saturdays, Sundays and legal holidays, of the date of filing of the petition.

Comment

Section 211.032.3, RSMo, provides: "A proceeding must be held within three business days of a petition being filed in all cases under subdivision (1) of subsection 1 of section 211.031."

A petition or motion to modify need not be filed for a juvenile officer, law enforcement officer or physician to take judicial custody of a juvenile. However, a petition or motion to modify must be filed before a court may order temporary protective custody of a juvenile.

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 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. Rule 123.04b(2) recognizes that, if the juvenile was not taken into judicial custody pursuant to an order of court under Rule 123.01a(1), the court must make this determination in the order for temporary protective custody.


(Adopted May 20, 2009, effective January 1, 2010.)

First Adopted: May 20, 2009

Most Recently Effective: January 01, 2010

Rule 123 | Rules of Practice and Procedure in Juvenile and Family Court Divisions of the Circuit Court | Part II: Rules Relating to Child Abuse and Neglect Proceedings | Custody

123.05 | Protective Custody Hearing

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 123.05a 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.

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.


(Adopted May 20, 2009, effective January 1, 2010.)

First Adopted: May 20, 2009

Most Recently Effective: January 01, 2010

Rule 123 | Rules of Practice and Procedure in Juvenile and Family Court Divisions of the Circuit Court | Part II: Rules Relating to Child Abuse and Neglect Proceedings | Custody

123.06 | Release From Protective Custody Upon Change of Circumstances

a. A juvenile in protective custody pursuant to court order may be released upon a determination by the court that a change of circumstances makes continued protective custody unnecessary.

b. A written request for release of a juvenile from protective custody shall set forth the changed circumstances warranting the juvenile’s release from protective custody and may be filed by the juvenile, the juvenile’s parents, guardian or custodian, the children’s division, the guardian ad litem, or the juvenile officer.

c. The court may grant or deny the request for release from protective custody without a hearing after written notice to all parties, or order that a hearing be held at a date, time and place determined by the court. Timely notice of the hearing shall be given to the juvenile, the juvenile’s parents, guardian or custodian or counsel for the juvenile’s parents, guardian or custodian, the children’s division or counsel for the children’s division, the guardian ad litem, and the juvenile officer.

d. At the hearing, upon receiving evidence, the court may grant the request and release the juvenile from protective custody to the juvenile’s parent, guardian or custodian or other suitable person, as directed by the juvenile’s parent or guardian, or deny the request and continue the juvenile in protective custody.

Comment

This Rule 123.06 recognizes that, following an order for protective custody, the circumstances that originally justified protective custody may change so that the juvenile safely can be released. The rule provides a mechanism for calling to the attention of the court such change of circumstances.


(Adopted May 20, 2009, effective January 1, 2010.)

First Adopted: May 20, 2009

Most Recently Effective: July 01, 2022

Rule 123 | Rules of Practice and Procedure in Juvenile and Family Court Divisions of the Circuit Court | Part II: Rules Relating to Child Abuse and Neglect Proceedings | Custody

123.07 | Preliminary Child Welfare Proceeding

a. When the juvenile in whose interest a petition is filed under section 211.031.1(1), RSMo, remains in the custody of the juvenile’s parent, guardian, or custodian or is released from judicial custody, the court shall, within three days, excluding Saturdays, Sundays, and legal holidays, of the date of filing of the petition, enter appropriate orders, including on the following issues:

(1) whether the children’s division shall be made a party to the proceeding;

(2) whether a guardian ad litem has been appointed for the juvenile;

(3) whether a court appointed special advocate should be appointed for the juvenile;

(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 to order temporary protective custody of the juvenile and schedule a protective custody hearing pursuant to Rule 123.05 or, in the absence of an order for temporary protective custody, schedule a hearing pursuant to Rule 124.06; and

(7) the date on which all parties shall appear before the court.

b. If the court orders temporary protective custody of the juvenile pursuant to Rule 123.07(a)(6), the court shall either schedule a protective custody hearing pursuant to Rule 123.05 or, if appropriate and by agreement of all parties, conduct a protective custody hearing immediately following the child welfare proceeding.

Comment

Section 211.032.3, RSMo, requires a proceeding to be held within three business days of a petition being filed in all cases under section 211.031.1(1), RSMo.

If the juvenile who is the subject of the petition remains in the custody of his or her parent, guardian, or custodian or is released from judicial custody pursuant to Rule 123.02c or Rule 123.04b(3)(A), the required "proceeding" may be merely an in camera meeting between the judicial officer and juvenile officer to address the identified preliminary issues.

The time periods prescribed in Rule 124.01a do not apply when the juvenile in whose interest a petition is filed under section 211.031.1(1), RSMo, remains in the custody of the juvenile’s parent, guardian, or custodian or is released from judicial custody to the custody of the juvenile’s parent, guardian, or custodian.

For a juvenile in the legal custody of the children’s division in a proceeding under section 211.031.1, RSMo, to be eligible for Title IV-E funding, the Adoption and Safe Families Act requires a judicial determination 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. Therefore, the court must make this determination if temporary protective custody of the juvenile is ordered under Rule 123.07(a)(6).


(Adopted May 20, 2009, effective January 1, 2010. Amended October 26, 2021, effective July 1, 2022.)

First Adopted: May 20, 2009

Most Recently Effective: January 01, 2010

Rule 123 | Rules of Practice and Procedure in Juvenile and Family Court Divisions of the Circuit Court | Part II: Rules Relating to Child Abuse and Neglect Proceedings | Custody

123.08 | Discovery

a. In any proceeding under subdivision (1) of subsection 1 of section 211.031, RSMo, within ten days of the date of the protective custody hearing or, in the absence of a protective custody hearing, within 14 days of the filing of the petition or motion to modify, the juvenile officer and children's division shall make available to all other parties or their counsel, the guardian ad litem and any court appointed special advocate the following documents and records, to the extent relevant to the allegations of the petition or motion to modify:

(1) medical records of the juvenile;

(2) law enforcement records, including police reports, regarding the juvenile and the juvenile’s parents, guardian or custodian;

(3) written statements and videotapes, audiotapes or similar recordings of statements of the juvenile and the juvenile’s parents, guardian or custodian;

(4) reports and affidavits submitted by the children's division to the juvenile officer requesting that the juvenile be taken into protective custody or that a petition be filed;

(5) completed social services reports and safety plans regarding the juvenile and the juvenile’s parents, guardian or custodian;

(6) written service agreements between the juvenile’s parents, guardian or custodian and the children's division; and

(7) completed hotline reports, redacted to the extent required by law, regarding the juvenile and the juvenile’s parents, guardian or custodian.

b. The obligation of the juvenile officer and children's division under this Rule 123.08 is limited to documents and records in their actual possession, and neither the juvenile officer nor the children's division has any obligation under this Rule 123.08 to request or obtain the identified documents and records for any other party, the guardian ad litem, or court appointed special advocate.

c. The obligation of the juvenile officer and children's division under this Rule 123.08 is continuing, and the juvenile officer and children's division shall make available within ten days of receipt to all other parties, the guardian ad litem and any court appointed special advocate any documents and records identified in Rule 123.08a that are subsequently received.

d. This Rule 123.08 shall not restrict any party from engaging in formal discovery, which shall be governed by Rules 41 to 101.

Comment

This Rule 123.08 establishes a procedure for informal production of specific documents and records that are relevant to the allegations of the petition or a subsequent motion to modify because the time frame in Rule 124.01a(2) makes formal discovery under the rules of civil procedure impractical.

However, this Rule 123.08 does not prevent a party from engaging in formal discovery, which, in view of the time periods allowed under the rules of civil procedure, will, in most cases, necessitate that the hearing on the petition or motion to modify be held outside the time frame in Rule 124.01a(2).

Nothing in this Rule 123.08 shall be construed to supersede any state law or federal regulation that makes information in the possession of the children's division confidential or which otherwise limits disclosure of information by the children's division.

Additionally, nothing in this Rule 123.08 prevents the court, on its own motion or on the motion of any party, from entering a protective order for any document or record made available by the juvenile officer and children's division pursuant to Rule 123.08a.

Finally, nothing in this Rule 123.08 shall be construed to alter the time period provided by statute for the children's division to complete a hotline report.


(Adopted May 20, 2009, effective January 1, 2010.)