First Adopted: May 20, 2009
Most Recently Effective: January 01, 2010
Rule 128 | Rules of Practice and Procedure in Juvenile and Family Court Divisions of the Circuit Court | Part IV: Rules Relating to Status and Delinquency Proceedings | Hearings
128.01 | Presence and Exclusion of Juvenile and Juvenile's Parents, Guardian or Custodian
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.
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).
(Adopted May 20, 2009, effective January 1, 2010.)
First Adopted: May 20, 2009
Most Recently Effective: January 01, 2010
Rule 128 | Rules of Practice and Procedure in Juvenile and Family Court Divisions of the Circuit Court | Part IV: Rules Relating to Status and Delinquency Proceedings | Hearings
128.02 | Adjudication Hearing
a. At an adjudication hearing in a proceeding under subdivision (2) or (3) of subsection 1 of section 211.031, RSMo, the court shall first determine whether:
(1) the juvenile and the juvenile’s parents, guardian or custodian have received notice of the hearing and been informed of the allegations against the juvenile and the range of dispositions if the allegations are admitted or proved;
(2) the juvenile has been informed of the right to counsel, including the right to appointed counsel, and unless counsel has been previously retained or appointed or the juvenile has waived the right to counsel, whether the juvenile objects to proceeding without counsel; and
(3) the juvenile’s parents, guardian or custodian have been informed of the right to counsel and, unless counsel has been previously retained or waived, whether they object to proceeding without counsel.
b. At such an adjudication hearing, the court shall determine what allegations in the petition or motion to modify are admitted by the juvenile and receive evidence on the allegations that have not been admitted. The hearing shall be held on the record. The court may take judicial notice of the court’s file. The rules of evidence shall apply. All parties shall be afforded the opportunity to testify, present evidence, cross-examine witnesses, and present arguments of law and fact and arguments concerning the weight, credibility and effect of the evidence.
c. Upon finding that the allegations in the petition or motion to modify are neither admitted by the juvenile nor proved, the court shall enter judgment denying the petition or motion to modify and, unless it has prior and continuing jurisdiction:
(1) order that the juvenile be discharged and, if appropriate, released from detention;
(2) order that the juvenile be released to the juvenile’s parent, guardian or custodian or other suitable person; and
(3) terminate jurisdiction.
d. Upon finding that any allegation in the petition or motion to modify is admitted by the juvenile, the court shall:
(1) make a finding whether the juvenile is present with counsel or, if not, whether the juvenile has knowingly and voluntarily waived the right to counsel;
(2) make findings on the allegations in the petition or motion to modify that are admitted by the juvenile;
(3) make a finding whether the admissions of the juvenile are freely and voluntarily given and knowingly made and whether a basis in fact exists for the juvenile’s admissions; and
(4) enter an order whether the court accepts the admissions of the juvenile and whether the court has jurisdiction over the juvenile.
e. Upon finding that any allegation in the petition or motion to modify is proved within the applicable standard of proof, the court shall:
(1) make findings on the allegations in the petition or motion to modify that are proved; and
(2) enter an order whether the court has jurisdiction over the juvenile.
f. If the dispositional hearing does not immediately follow the adjudication hearing, the court:
(1) shall continue or, if appropriate, amend any detention order;
(2) may order a social study to be prepared pursuant to Rule 118.01; and
(3) shall schedule the dispositional hearing.
g. Additionally, if the dispositional hearing does not immediately follow the adjudication hearing, the court shall determine and make findings on whether:
(1) reasonable efforts were made, or deemed to have been made, to prevent or eliminate the need for removal of the juvenile from the home; and
(2) continuation of the juvenile in the home is contrary to the welfare of the juvenile.
Comment
In scheduling an adjudication hearing on a petition or motion to modify, the court must consider the requirement in Rule 127.08 that, if the juvenile is detained, the adjudication hearing shall be held at the earliest possible date.
If the juvenile and the juvenile’s parents, guardian or custodian have counsel present, the inquiry under Rule 128.02a(2) or Rule 128.02a(3) is not required.
The purpose of the adjudication hearing is to determine whether the allegations in the petition or motion to modify are established. The allegations in a petition or motion to modify in a proceeding under subdivision (3) of subsection 1 of section 211.031, RSMo, are proved only by evidence that convinces beyond a reasonable doubt. The allegations in a petition or motion to modify in a proceeding under subdivision (2) of subsection 1 of section 211.031, RSMo, are proved only by evidence that is at least clear and convincing.
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.
Rule 128.02g recognizes that, if the dispositional hearing does not immediately follow the adjudication hearing, the court must include in the adjudication order whichever of these determinations has not been previously made.
(Adopted May 20, 2009, effective January 1, 2010.)
First Adopted: May 20, 2009
Most Recently Effective: January 01, 2010
Rule 128 | Rules of Practice and Procedure in Juvenile and Family Court Divisions of the Circuit Court | Part IV: Rules Relating to Status and Delinquency Proceedings | Hearings
128.03 | Dispositional Hearing
a. A dispositional hearing in a proceeding under subdivision (2) or (3) of subsection 1 of section 211.031, RSMo, may be held separate from or immediately following an adjudication hearing held pursuant to Rule 128.02.
b. At such a dispositional hearing, the court shall receive evidence and, in accordance with the best interests of the juvenile, determine and make findings on the legal and physical custody of the juvenile and on the disposition to be imposed on the juvenile. The hearing shall be held on the record. The court may take judicial notice of the court’s file. The rules of evidence do not apply. All parties shall be afforded the opportunity to testify, present evidence, cross-examine witnesses, and present arguments of law and fact and arguments concerning the weight, credibility and effect of the evidence.
c. At such a dispositional hearing, the court shall admit any social study into evidence and additionally receive:
(1) the recommendations of the juvenile officer;
(2) evidence regarding the recommendations of the juvenile officer; and
(3) evidence as may be relevant to determining the appropriate disposition in the interest of the juvenile.
d. At such a dispositional hearing, the court:
(1) shall enter an order for the legal and physical custody of the juvenile;
(2) may, if the juvenile is released to the juvenile’s parent, guardian or custodian, terminate jurisdiction;
(3) shall order such disposition as is appropriate and provided by law; and
(4) shall schedule, if the juvenile is placed in the legal custody of the children’s division, a dispositional review hearing or, when appropriate, a permanency hearing within the time frames in Rule 124.01b(1) and Rule 124.01b(2) respectively.
e. At such a dispositional hearing, if the juvenile is placed in the legal custody of the children’s division, the court shall determine and make findings on whether:
(1) reasonable efforts were made, or deemed to have been made, to prevent or eliminate the need for removal of the juvenile from the home; and
(2) continuation of the juvenile in the home is contrary to the welfare of the juvenile.
Comment
The purpose of the dispositional hearing is to determine:
(1) the legal and physical custody of the juvenile, and
(2) the services, treatment and placement necessary to facilitate the care, protection and discipline of the 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:
(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.
This Rule 128.03 recognizes that the court must include in the dispositional order whichever of these determinations has not been previously made.
Additionally, for such juvenile 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 that is in effect. Therefore, if a juvenile is placed in the legal custody of the children’s division under subdivision (2) of subsection 1 of section 211.031, RSMo, the court must hold an annual permanency hearing as provided in Rule 124.09.
When returning a juvenile from Missouri upon the filing of a petition by the juvenile’s home state, or placing a juvenile outside Missouri for supervision, in a proceeding under subdivision (2) or (3) of subsection 1 of section 211.031, RSMo, the court and all parties must comply with the Interstate Compact on Juveniles. See section 210.570, RSMo.
Cross-reference: Section 211.181, RSMo.
(Adopted May 20, 2009, effective January 1, 2010.)