Chapter 10: Pleadings/Service
| Section 10.1 |
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Petition |
| Section 10.2 |
Responsive Pleadings and Motions |
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| Section 10.3 |
Notice/Service |
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| Section 10.4 |
Service Upon Juvenile |
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| Section 10.5 |
Service Upon Parents |
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| Section 10.6 |
Service of Summons Upon Other Parties |
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| Section 10.7 |
Manner of Service |
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| Section 10.8 |
Inability to Serve |
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| Section 10.9 |
Time for Service - Juvenile |
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| Section 10.10 |
Time for Service - Custodian |
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| Section 10.11 |
Time for Service - Registered or Certified Mail |
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| Section 10.12 |
Who May Serve |
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| Section 10.13 |
Endorsement of Custody Order on Summons |
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| Section 10.14 |
Service of Subsequent Pleadings, Motions and Notices |
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| Section 10.15 |
Waiver of Service by Custodian |
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| Section 10.16 |
Witnesses |
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| Section 10.17 |
Right of Grandparents to Intervene |
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| Section 10.18 |
Failure to Respond to Summons |
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Section 10.1 Petition |
The initial pleading commencing a juvenile case is known as a petition. A deputy juvenile officer is permitted to sign an original petition and an amended petition. In Interest of T.L.C., 553 S.W.2d 556 (Mo. App. 1977). The caption of the case must be entitled "In the Interest of __________, (Male)(Female), Date of Birth __________." Supreme Court Rule 113.01. See also Section 211.091, RSMo.
The following, at a minimum, must be contained within the petition:
1. Full name, birth date and residence of the juvenile;
2. The name and residence address of the following:
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a. The
juvenile's parents, |
| b. The juvenile's legal guardian if there is one, | |
| c. Any person or agency in whose custody the juvenile may be place, | |
| d. The juvenile's nearest relative if no parent or guardian can be found, and | |
| e. The juvenile's spouse if there is one. |
3. The facts that bring the juvenile within the jurisdiction of the juvenile court including the date, place and manner of the acts alleged, and the law or standard of conduct, if any, allegedly violated by the acts; and
4. Any other pertinent data or information. Supreme Court Rule 113.01.
The petition shall be filed in the office of the clerk of the juvenile court.
COMMENTS:
Although the allegations of a petition charging a juvenile with a crime need not be couched in the technical terms required of an indictment or information, Richardson v. State, 555 S.W.2d 83 (Mo. App. 1977), it is, however, suggested that the petition, if charging a crime, use the format of the Missouri Approved Charges - Criminal modified with an introduction substantially as follows:
The juvenile has committed acts which, if committed by an adult, would constitute the Class ___ felony/misdemeanor of__________ in violation of Section __________, RSMo, in that [here repeat allegations from MACH-Cr.]
If the petition charges a status offense, each and every element of the offense as set forth supra should be charged. If the petition charges abuse or neglect, each and every element thereof as set forth supra should be charged.
A petition which fails to state a claim because it does not mention the date, place and manner of acts which are complained of is insufficient to vest the juvenile court with jurisdiction. In Interest of C.J.A.A., 674 S.W.2d 266 (Mo. App. W.D. 1984). See also In re M R F, 907 S.W.2d 787 (Mo. Ct. App. 1995). A petition, however, which is couched in the language of the jurisdictional section defining the juvenile court's jurisdiction, is adequate to vest the court with jurisdiction to enter custody orders. Matter of Trapp, 593 S.W.2d 193 (Mo. 1980).
The petition may be amended by leave of court at any time. Supreme Court Rule 113.02. The court shall grant the parties such additional time to prepare as may be necessary to provide a full and fair hearing in the event the petition is amended. Id.
Prior to the voluntary dismissal of a petition, the juvenile officer shall assess the impact of such dismissal on the best interests of the child, and shall take all actions practicable to minimize any negative impact. Section 211.091.4, RSMo. The dismissal of a petition without prejudice does not bar by res judicata, a subsequent petition asking the juvenile court to assume jurisdiction over a child alleging the same issue which was addressed in the previous petition which was dismissed without prejudice. In Interest of R.G., 885 S.W.2d 757 (Mo. App. 1994).
A juvenile may not be adjudicated for an uncharged offense even if the evidence of that offense comes from the juvenile's own testimony during the hearing because lack of notice and inability to prepare a defense violates the juvenile's right to due process of law. In Interest of J.D.B., 2 S.W.3d 150 (Mo. App. W.D. 1999). See also T.S.G. v. Juvenile Officer, 322 S.W.3d 145 (Mo. App. W.D. 2010).
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Section 10.2 Responsive Pleadings and Motions |
No party is required to a file a responsive pleading. A party may file a response to any pleading or motion at any time prior to, or at commencement of the hearing on the pleading or motion. Supreme Court Rule 113.03.
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Section 10.3 Notice/Service |
Summonses shall be issued by the clerk to all parties. Supreme Court Rule 114.01. A party is defined as the juvenile, the juvenile’s parents, the juvenile’s guardian/custodian, the juvenile officer, the children’s division, and any other person denominated as a party. Supreme Court Rule 110.04(20). Summonses must be issued at a minimum to the juvenile and to the juvenile's custodian. Unless the court orders otherwise, the summons issued to the custodian should require the custodian to bring the juvenile with him. A summons should be issued to any person meeting the definition of "custodian" as that term is defined in Supreme Court Rule 110.04(a)(5), to any person defined as a "parent" as that term is defined in Supreme Court Rule 110.04(a)(19), to any person defined as a “guardian” as that term is defined in Supreme Court Rule 110.04(a)(9) and to any person having actual custody of the juvenile, Supreme Court Rule 114.01(a), (b) and (c), see also Section 211.101, RSMo.
Subpoenas are used to compel the attendance of witnesses at a hearing. Parties are entitled to compulsory process for any necessary witness and may request that the clerk issue a subpoena stating the date, time and place of appearance. Supreme Court Rule 114.04.
Notice, which informs the juvenile of the nature and substance of the proceeding, alleged facts, which bring him under the juvenile code, and a notification of the time and date of the alleged misconduct are sufficient to satisfy due process requirements. In Interest of R.R.P., 545 S.W.2d 351 (Mo. App. 1976). In an abuse/neglect case, a petition satisfies the requirements of due process notice where the petition notifies the parent of the pendency of the proceedings and makes clear the charges that the parent must defend against. Matter of Trapp, 593 S.W.2d 193 (Mo. 1980). A juvenile may not be adjudicated for an uncharged offense even if the evidence of that offense comes from the juvenile's own testimony during the hearing because lack of notice and inability to prepare a defense violates the juvenile's right to due process of law. In Interest of J.D.B., 2 S.W.3d 150 (Mo. App. W.D. 1999).
The failure to notify a parent or guardian to be present with a juvenile at adjudication may result in the loss of jurisdiction of the juvenile court to proceed with the hearing. In Interest of J.L.P., 600 S.W.2d 47 (Mo. App. E.D. 1980). The notice required is that notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. Matter of Trapp, 593 S.W.2d 193 (Mo. 1980). But see C.B.G. v. Mo. Dep't of Soc. Servs.(In the Interest of C.J.G.), 219 S.W.3d 244 (Mo. 2007).
A delay as long as seven months between the filing of a petition and the adjudicatory hearing, while "worrisome," does not deprive the court of jurisdiction to proceed. In Interest of M.R.F., 907 S.W.2d 787 (Mo. App. S.D. 1995). See also Section 211.101 RSMo.
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Section 10.4 Service Upon Juvenile |
Service of summons upon a juvenile must be made personally if the juvenile is 12 years of age or older. If the juvenile is less than 12 years of age, service shall be affected by serving the juvenile's parent, guardian or custodian. Supreme Court Rule 114.01(c)
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Section 10.5 Service Upon Parents |
Service of summons upon parents shall be made personally. Summons also shall be served personally upon the person having actual custody of the juvenile, if that person is different than the parents of the juvenile. If personal service cannot be had upon the parent or person having actual custody of the juvenile, service of summons shall be made by registered or certified mail to their last known address. Supreme Court Rule 114.01(d).
The failure of the juvenile court to effectuate actual service of process on a parent or to attempt service by registered mail at least five days before the time of the hearing deprived the court of the authority to hold an abuse and neglect proceeding with regard to the parent's minor children. Supreme Court Rule 114.01(f). See In Re: D.N.P., 798 S.W.2d 196 (Mo. App. E.D. 1990). In this case, the court was deprived of its authority to hold the hearing despite the fact that the sheriff indicated that service was attempted nine times on eight separate days and at various hours of the day and by making a notation on the summons that indicated the father "wouldn't answer the door." Id. Further, the mere receipt by the parents of a copy of a custody petition and order does not constitute service of summons as required for a custody hearing. In Interest of D.L.D., 701 S.W.2d 152 (Mo. App. W.D. 1985).
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Section 10.6 Service of Summons Upon Other Parties |
Other parties entitled to service of summons must be served personally or by registered or certified mail to their last known address. Supreme Court Rule 114.01(d).
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Section 10.7 Manner of Service |
Personal service shall be made in the manner provided in Supreme Court Rule 54. See also Section 211.111.1, RSMo. If the juvenile court is satisfied after a thorough investigation that it is impracticable to serve the summons personally, the court may order service by registered mail to the last known address of the person, or the court may order service by publication. Section 211.111.1, RSMo.
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Section 10.8 Inability to Serve |
The inability to serve any party does not deprive the court of jurisdiction to proceed. Supreme Court Rule 114.01(e).
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Section 10.9 Time for Service - Juvenile |
Personal service must be affected upon the juvenile at least 24 hours before the time set for the hearing. Supreme Court Rule 114.01(f). See also Section 211.111.2, RSMo.
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Section 10.10 Time for Service - Custodian |
Personal service must be affected upon the juvenile's parents, guardian or custodian at least 24 hours before the time set for the hearing. Supreme Court Rule 114.01(f). See also Section 211.111.2, RSMo.
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Section 10.11 Time for Service - Registered or Certified Mail |
Registered or certified mail shall be mailed at least five days before the time of the hearing. Supreme Court Rule 114.01(f). See also Section 211.111.2, RSMo.
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Section 10.12 Who May Serve |
Service of summons may be made by the sheriff, the juvenile officer or, if ordered by the court, any other suitable person. Supreme Court Rule 114.01(g). See also Section 211.111.3, RSMo.
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Section 10.13 Endorsement of Custody Order on Summons |
If it appears that the child or person 17 years of age is in such condition or surroundings that his or her welfare requires that his or her custody be immediately assumed by the court, the judge may order, by endorsement upon the summons, the officer serving it to take the child or person 17 years of age into custody at once. Section 211.101.3, RSMo.
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Section 10.14 Service of Subsequent Pleadings, Motions and Notices |
Pleadings subsequent to the original petition, all motions other than those which may be heard ex parte, and all notices and other papers which are required to be served upon parties shall be served upon each of the other parties affected thereby and filed with the court in the manner set forth in Supreme Court Rule 43.01. Note, however, that a motion to modify with substantive allegations not in the original petition must be served with summons on all parties as set out in Supreme Court Rule 114.01(c) and (d). Supreme Court Rule 114.05.
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Section 10.15 Waiver of Service by Custodian |
A parent, guardian or custodian may waive service of summons by executing a written waiver. A copy of the petition shall be given to the person executing the waiver at the time the written waiver of summons is executed. Supreme Court Rule 114.03(a).
Appearance at the hearing by the parent, guardian or custodian shall constitute a waiver of service by the person making the appearance. Supreme Court Rule 114.03(b). In Interest of M.R.F., 907 S.W.2d 787 (Mo. App. S.D. 1995). See also State v. Pogue, 282 S.W.2d 582 (Mo. App. 1955). See C.B.G. v. Mo. Dep't of Soc. Servs.(In the Interest of C.J.G.), 219 S.W.3d 244 (Mo. 2007).
The entry of appearance by an attorney has the effect of waiving any defects in the summons. State ex rel. A.M.T. v. Weinstein, 411 S.W.2d 267 (Mo. App. 1967).
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Section 10.16 Witnesses |
Parties are entitled to compulsory process for any necessary witness. Supreme Court Rule 114.04. See also Section 211.101.4, RSMo. An incarcerated prisoner has a right to petition for a writ of habeas corpus ad testificandum to be present at a trial to determine whether the prisoner's parental rights should be terminated. However, where the petition for writ of habeas corpus ad testificandum was filed the day before trial on the termination of parental rights petition, denial thereof has been held to be proper because the petition failed to comply with the time requirements of Section 491.230.2. In Interest of C.M.D., 18 S.W.3d 556 (Mo. App. W.D. 2000).
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Section 10.17 Right of Grandparents to Intervene |
Grandparents have a right to intervene in any proceeding under Chapter 211, RSMo, in which the custody of a grandchild is in issue unless the juvenile judge decides after considering a motion to intervene by the grandparent that such intervention is against the best interests of the child. Section 211.177.1, RSMo. This right of grandparent intervention, however, may terminate upon the adoption of the child except where the child is adopted by a step-parent, another grandparent or other blood relative. Section 211.177.2, RSMo.
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Section 10.18 Failure to Respond to Summons |
Section 211.121, RSMo provides that if any person summoned by personal service fails without reasonable cause to appear, he may be proceeded against for contempt of court. If the party failed to obey the summons or if it appears to the court that service will be ineffectual, the court may issue a capias for the parent, guardian, or the child. Section 211.121, RSMo.