Chapter 03: Jurisdiction
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Section 3.1 Generally |
Section 211.031, RSMo, is the beginning point for any judge in hearing a juvenile case under Chapter 211, RSMo. Section 211.031, RSMo sets the jurisdictional and venue parameters for proceedings in the juvenile division except for termination of parental rights, which has different rules and are set forth at 211.442, et seq., RSMo.
The jurisdiction of the juvenile court is original and exclusive and juvenile cases are conducted in the juvenile division of the circuit court or in the family court in circuits that have such a court.
Section 211.031, RSMo provides that the juvenile court has jurisdiction over abuse/neglect proceedings, status offenses, delinquency, adoption and for the commitment of a child to the guardianship of the Department of Social Services. The juvenile court does not have authority to enter a name change despite the fact that the juvenile court has exclusive jurisdiction over the subject matter of the juvenile's custody. B.L.W. by Ellen K. v. Wollweber, 823 S.W.2d 119 (Mo. App. S.D. 1992).
The juvenile court is a court of limited jurisdiction and its powers are strictly confined to its statutory authority. In Interest of A.H., 689 S.W.2d 771 (Mo. App. W.D. 1985).
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Section 3.2 Continuing Jurisdiction |
Section 211.041, RSMo provides rules for the continuation of jurisdiction of the juvenile court over a child until the age of 21 under certain circumstances. If jurisdiction over the child has been properly acquired during a time when the court has jurisdiction over the child (under 18 years of age for abuse/neglect, under 17 years of age for status/delinquency), the juvenile court may retain its jurisdiction over the child until the child attains the age of 21 years.
An exception to this rule is that the jurisdiction of the juvenile court is terminated upon the commitment to and receipt of the child by the Division of Youth Services. An exception to the rule of the juvenile court's exclusive, original jurisdiction also exists where a child over whom jurisdiction has been retained commits a crime after becoming 17 years of age. In such cases, the juvenile over whose person the juvenile court has retained jurisdiction shall be prosecuted under the general law for any violation of state law or municipal ordinance committed after the child has become 17 years of age.
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Section 3.3 Return of Juvenile to Children's Division Custody after Release |
| from Jurisdiction |
A child under the age of 18 who has been under the jurisdiction of the court in the custody of the Children’s Division and who, prior to reaching the age of 18 years, is released from said custody may be returned to the custody of the Children’s Division pursuant to the provisions of Section 211.036, RSMo. That section provides that if it would be in the best interests of the child to have his custody returned to the Children’s Division, the juvenile officer, Children’s Division or the child may petition the court to return custody of the child to Children’s Division until the child reaches 18 years of age. This is an exception to the rule which provides that normally the only person who may file a petition in the juvenile division is the juvenile officer.
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Section 3.4 Power of Other Courts to Determine Custody Issues/Uniform Child Custody |
| Jurisdiction and Enforcement Act/Indian Child Welfare Act |
Although the jurisdiction of the juvenile court in the areas provided by the legislature is exclusive and original, other courts are not deprived of their power to hear and determine custody issues in other types of cases such as dissolutions of marriage, modifications, adult abuse, child protective orders, guardianship, writs of habeas corpus and the like. Section 211.051, RSMo provides, however, that such questions may be certified by those other courts to the juvenile division for hearing, determination or recommendation. The juvenile court has paramount jurisdiction over other courts in matters relating to the care and custody of children who come within the provisions of the juvenile code. State ex rel. Dubinsky v. Weinstein, 413 S.W.2d 178 (Mo. 1967).
The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) Section 452.700 et seq., RSMo applies to abuse/neglect proceedings under Chapter 211. State ex rel. In Interest of R..P. v. Rosen, 966 S.W.2d 292 (Mo. App. W.D. 1998). See also In Interest of S.L., 872 S.W.2d 573, 576 (Mo. App. 1994). Under the UCCJEA there are grounds on which a court may exercise jurisdiction or make a child custody determination. Shorthand names for these grounds are:
1. Home state;
2. Court of another state does not have jurisdiction, or a court of the home state of the child has declined to exercise jurisdiction on the ground that this state is the more appropriate forum under Sections 452.770 or 452.775, and:
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a. The
child and the child’s parents, or the child and at least one parent or person
acting as a parent have a significant connection with this state other than mere physical presence; and |
| b. Substantial
evidence is available in this state concerning the child’s care, protection,
training and personal relationships. |
Indian Child Welfare Act. The Indian Child Welfare Act, 25 U.S.C. Section 1901, et seq., (the "Act") was enacted in response to concern over the high percentage of Indian families being broken up by often unwarranted removal of their children by non‑tribal public and private agencies. The purpose of the Act is to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families. The Act specifically applies to all child custody proceedings involving Indian children as those terms are defined in the Act.
The Act establishes a federal policy that, where possible, an Indian child shall remain in the Indian community. The underlying purpose of the Act is that it is concerned with the removal of Indian children from an existing Indian family unit and the resultant break‑up of the Indian family, which in turn threatens the existence of the Indian tribe. In the Matter of C.E.H., 837 S.W.2d 947 (Mo. App. W.D. 1992).
The Act gives jurisdiction to the Indian Tribe under certain circumstances. Under the Act, "Indian" includes any person who is a member of an Indian Tribe. An "Indian child" means any unmarried person under eighteen who is either:
1. A member of an Indian tribe, or
2. Eligible for membership therein and the biological child of a member of the tribe. 1903(4).
"Parent" means a biological parent of an Indian child, but does not include an unwed father where paternity has not been established or acknowledged. 1903(9). In a state court proceeding for the termination of parental rights to an Indian child, the tribe shall have a right to intervene at any point in the proceedings. 1911(c).
In any involuntary proceeding, the party seeking termination shall notify the parent and the tribe by registered mail, return receipt requested. If the identity or location of the parent or tribe cannot be determined, such notice must be given to the Secretary of the United States Department of Interior.
A parent has a right to appointed counsel if indigent, to examine all reports, and to have the court satisfied that active efforts have been made to provide remedial services designed to prevent breakup of the Indian family. 1912(d). A termination may not be granted in absence of evidence beyond a reasonable doubt, including testimony of qualified experts, that continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child. 1912(f).
An Indian child, the child's parent or Indian custodian from whom custody was removed and the tribe may petition the Court to invalidate a termination upon showing the Act was violated. 1914.
However, it has been held that the availability of witnesses and evidence to the juvenile court constitutes good cause not to transfer a termination of parental rights case to the Indian Tribal Court. In the Matter of C.E.H., supra.
The aforesaid holding was reaffirmed in In the Interest of D.C.C., 971 S.W.2d 843 (Mo. App. W.D. 1998), wherein the court ruled that the Act is "not applicable where an Indian child is not being removed from an Indian cultural setting, where the natural parents have no substantive ties to a specific tribe, and where neither of the parents nor their families have resided or plan to reside within a tribal reservation." See also In re Adoption of Crews, 825 P.2d 305, 310 (Wash. 1992).
For an Indian child not domiciled or residing within the reservation of the child's tribe, the court, in absence of good cause to the contrary, must transfer the proceeding to the jurisdiction of the tribe absent objection by either parent upon the petition of either parent or the Indian custodian or the Indian child's tribe. Where there is no petition to transfer jurisdiction or no petition to intervene or to transfer jurisdiction filed either by a parent or the tribe, and where there was good cause for the state court to retain jurisdiction (location of witnesses and evidence was more convenient to the trial court than to the tribal court), transfer is not required. In the Matter of C.E.H., supra.
In In Interest of S.A.M., 703 S.W.2d 603 (Mo. App. S.D. 1986), the trial court's decision that the child was not an Indian child within the meaning of Act and its decision that the Act did not apply to the termination proceedings was affirmed. In this case, appellant (father) was enrolled in a recognized tribe. Mother was not an Indian and the child was born out of wedlock. Father had never established or acknowledged paternity. Relying on cases from other jurisdictions, the court further held that the Act did not extend to a non‑Indian mother or her child where father had not come forward to establish or acknowledge paternity. See Matter of Appeal in Maricopa County, 667 P.2d 228 (Ariz. App. 1983). See also Matter of Adoption of Baby Boy L., 643 P.2d 168 (Kan. 1982).
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Section 3.5 Juvenile Court Judgment to Have Precedence |
Section 211.093, RSMo provides that an order or judgment entered by the juvenile court under Chapters 210 or 211, RSMo shall take precedence over any order or judgment concerning the status or custody of a child under the age of 21 years entered by a court under the authority of Chapters 452, 453, 454 or 455, RSMo, but only to the extent inconsistent therewith.
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