Chapter 08: Taking a Juvenile into Judicial Custody
| Section 8.1 |
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Generally |
| Section 8.2 |
Protective Custody (Abuse/Neglect) |
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| Section 8.3 |
Emergency Protective Custody by Law Enforcement Officer or Physician |
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| Section 8.4 |
Hour Temporary Protective Custody by Juvenile Officer |
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| Section 8.5 |
Court Action Upon Notice that Juvenile is in Temporary Protective Custody |
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| Section 8.6 |
Protective Custody Hearing |
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| Section 8.7 |
Release from Protective Custody Upon Change of Circumstances |
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| Section 8.8 |
Detention (Status/Delinquency) |
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| Section 8.9 |
Hour Temporary Detention |
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| Section 8.10 |
Court Action Upon Notice that Juvenile is in Detention |
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| Section 8.11 |
Probable Cause Hearing for Status Offenders |
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| Section 8.12 |
Court Action Upon Notice that Juvenile is in Detention (Delinquency) |
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| Section 8.13 |
Effect of Taking Juvenile into Judicial Custody |
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| Section 8.14 |
Procedure if Juvenile Released from Judicial Custody Pending Adjudicatory Hearing |
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| Section 8.15 |
Juvenile's Rights During Detention |
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Section 8.1 Generally |
Supreme Court Rules 123 and 127 govern when a juvenile may be taken into judicial custody, the procedures which must be followed if a juvenile is taken into judicial custody, the procedures to follow if the juvenile is released, notice provisions and procedures related to initial court orders, protective custody hearings, probable cause hearings and detention hearings.
"Judicial custody" includes the taking of a juvenile into both protective custody (abuse/neglect) and detention (status/delinquency). Supreme Court Rule 110.04(a) (10). See also Supreme Court Rules 110.04(a) (6) and 110.04(a) (25). Hearings addressing matters of judicial custody are governed by Rules 123 and 124 if the juvenile is placed in temporary protective custody and by Rules 126 to 128 if the juvenile is placed in detention.
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Section 8.2 Protective Custody (Abuse/Neglect) |
A juvenile may be taken into judicial custody regarding allegation of abuse or neglect pursuant to an order of court, or by a law enforcement officer or a physician (Supreme Court Rule 123.01.a(2)) or by a juvenile officer. Supreme Court Rule 123.01.a(3).
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Section 8.3 Emergency Protective Custody by Law Enforcement Officer or Physician |
A law enforcement officer or a physician may take a juvenile into judicial custody if:
1. There is reasonable cause to believe that the child is in imminent danger of suffering serious physical harm or a result of abuse or neglect, and
2. Said harm or threat may occur before a juvenile court could issue a temporary protective custody order. Supreme Court Rule 123.01(2).
Upon taking the juvenile into judicial custody as a result of abuse or neglect, the law enforcement officer or physician must immediately notify the juvenile officer and Children’s Division and make reasonable attempt to advise the parents, guardians, or other legally responsible person. As soon as practicable, but not later than 12 hours after taking the juvenile into judicial custody, the law enforcement officer or physician must file with the juvenile officer a written statement that sets forth:
1. The identity of the juvenile,
2. The facts and circumstances that gave such person reasonable cause to believe that there was imminent danger of serious physical harm or threat to life of the juvenile. Supreme Court Rule 123.02.b.
The jurisdiction of the court attaches from the time the juvenile was taken into judicial custody. Supreme Court Rule 123.01.
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Section 8.4 Hour Temporary Protective Custody by Juvenile Officer |
Upon receipt of written notification from the law enforcement officer or physician that a juvenile has been taken into judicial custody as set forth above, the juvenile officer may, unless the court has ordered protective custody of the juvenile, release the juvenile pursuant to Supreme Court Rule 123.03 or may take the juvenile into "temporary protective custody." The juvenile officer may take the juvenile into temporary protective custody if:
1. There is reasonable cause to believe that the juvenile is without proper care, custody or support, and
2. That temporary protective custody is necessary to prevent personal harm to the juvenile.
As soon as practicable, the
juvenile officer shall notify the court that the juvenile is in judicial
custody.
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Section 8.5 Court Action Upon Notice that Juvenile is in Temporary Protective Custody |
The court may issue an order for temporary protective custody, but only if:
1. A petition or a motion to modify has been filed,
2. The court has determined that probable cause exists to believe that the juvenile is without proper care, custody or support because the facts specified in the pleading bring the juvenile within the jurisdiction of the court under Section 211.031.1(1), RSMo, and
3. That the court determines that the conditions requiring temporary protective custody continue to exist.
The order should include the Adoption and Safe Families Act (ASFA) "contrary to welfare" findings. If, after review of the request for temporary protective custody of the supporting documentation, the court orders the juvenile released pursuant to the provisions of Supreme Court Rule 123.07 within three business days of filing of the pleadings. See Supreme Court Rule 123.04.
If the court enters an order for temporary protective custody, the court shall also appoint a guardian ad litem and the parties shall be given notice of a protective custody hearing to be held within three days of the juvenile’s placement in judicial custody. Said notice may be given orally to all parties and the guardian ad litem. Supreme Court Rule 123.05.a.
Upon written motion and upon good cause shown, the court may continue the date for the protective custody hearing (and thereby extend temporary protective custody for a date not later than 14 days from when the juvenile was initially taken into custody. Supreme Court Rule 123.05.
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Section 8.6 Protective Custody Hearing |
The court shall hold a protective custody hearing within three days of the date the juvenile is taken into judicial custody, excluding Saturdays, Sundays and legal holidays. Supreme Court Rule 123.04.
At the hearing, the court shall determine whether the parents, guardian or custodian has been informed of the right to counsel. If not, the court shall so inform the parents, guardian or custodian and the court may continue the hearing to enable counsel to be obtained if the right to counsel is not waived. Supreme Court Rule 123.05.
At the hearing, the court may receive evidence relevant to the necessity of placing the juvenile in protective custody. Written reports or social records offered to the court at the protective custody hearing shall be available to all parties at or prior to the hearing. At the conclusion of the hearing, the court may either order the juvenile released pursuant to Supreme Court Rule 123.02 or order the juvenile placed in protective custody pending further proceedings. In order to place the juvenile in protective custody pending further proceedings, the court shall consider and make findings on 13 factors set out in Supreme Court Rule 123.05.g. The order also should include ASFA "contrary to welfare" findings and "reasonable efforts" findings.
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Section 8.7 Release from Protective Custody Upon Change of Circumstances |
A written request for the release of the juvenile from protective custody, which sets forth changed circumstances, may be filed by the juvenile, the juvenile's parents, guardian or custodian, the guardian ad litem, the children’s division, or the juvenile officer. Supreme Court Rule 123.06. The court may grant or deny the request without a hearing or may order that a hearing be held at a date, time and place as determined by the court. If a hearing is ordered, notice thereof shall be given to the juvenile, the parents, guardian or custodian, counsel for the parents, guardian or custodian, the guardian ad litem and the juvenile officer prior to the hearing. At the hearing, upon receiving evidence, the court may grant the request and release the juvenile or the court may deny the request and continue the juvenile in protective custody. Supreme Court Rule 123.06.
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Section 8.8 Detention (Status/Delinquency) |
A juvenile may be taken into judicial custody regarding allegations of delinquent or status behavior pursuant to a court order requiring the juvenile to be detained, pursuant to the laws of arrest applicable to adults, or by the juvenile officer. Supreme Court Rule 127.01. The juvenile may be detained in a juvenile detention facility, a shelter care facility subject to the supervision of the court, a suitable place of detention maintained by an association having for one of its objects the care and protection of children, or such other suitable custody as the court may direct. A juvenile under 17 years of age shall not be detained in a jail or other adult detention facility. Supreme Court Rule 127.03. After a juvenile has been taken into judicial custody by virtue of allegations of delinquent or status behaviors, the juvenile must be presented to the juvenile officer and the juvenile officer may, unless the court has ordered detention of the juvenile, release the juvenile pursuant to Supreme Court Rule 127.02, or may take the juvenile to a detention facility and authorize 24 hour temporary detention pursuant to Rule 127.06.
When a juvenile is admitted to a detention facility, the juvenile shall immediately be informed orally or in writing of:
1. The reasons for detention,
2. The right to remain silent,
3. The right to counsel under Supreme Court Rule 115.02,
4. The right to a detention hearing under Supreme Court Rules 127.07 and 127.08, and
5. The rights during detention under Supreme Court Rule 127.10. Supreme Court Rule 127.05a.
The juvenile officer or person in charge of the detention facility shall notify the juvenile's custodian as soon as practicable that the juvenile is in detention and the reason for the juvenile's detention and the juvenile's rights as set forth above.
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Section 8.9 Hour Temporary Detention |
The juvenile officer may authorize 24 hour temporary detention. Supreme Court Rule 127.06.
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Section 8.10 Court Action Upon Notice that Juvenile is in Detention |
Upon notice that the juvenile is in detention, the court must examine the reasons for the detention and shall immediately release the juvenile pursuant to Supreme Court Rule 127.02 or order the juvenile continued in detention until a detention hearing is held pursuant to Supreme Court Rule 127.08.
An order to continue the juvenile in detention shall only be entered upon the filing of a petition or motion to modify and a determination by the court that probable cause exists to believe that the juvenile has committed acts specified in the pleading that bring the juvenile within the jurisdiction of the court for a status or delinquency offense pursuant to Section 211.031.1(2) or (3), RSMo, and that the conditions requiring judicial custody continue to exist. Supreme Court Rule 127.07. The order should include ASFA "contrary to welfare" findings and "reasonable efforts" findings for the reasons stated in Section 75 of the Missouri Bench Book - Juvenile.
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Section 8.11 Probable Cause Hearing for Status Offenders |
If the juvenile is being held in detention for status offenses only, the court must hold a probable cause hearing within 24 hours as provided by the provisions of Section 211.063 RSMo. For judicial economy and expediency, it is best to combine the probable cause hearing with the detention hearing. In order for the court to enter a further order of detention for a status offender, the court must do the following:
1. Hold a probable cause hearing within 24 hours (excluding Saturdays, Sundays and legal holidays),
2. At said hearing determine that the juvenile has violated the conditions of a valid court order setting forth specific conditions of behavior for the juvenile and consequences of violation of such conditions and that the juvenile has either:
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a. A record of willful failure to appear at court proceedings or |
| b. A record of violent conduct resulting in physical injury to self or others or a record of leaving a court-ordered placement, other than secure detention, without permission. |
If the court combines the probable cause hearing with the detention hearing, the court must make the specific findings applicable to status offender as well as finding that detention of the juvenile is required for one of the five reasons set forth in Rule 127.08. Those reasons are:
1. To protect the juvenile,
2. To protect the person or property of others,
3. Because the juvenile may flee or be removed from the jurisdiction of the court,
4. Because the juvenile has no custodian or suitable adult to provide care and supervision and to return the juvenile to the court when required, or
5. Because the juvenile is a fugitive from another jurisdiction and an official of that jurisdiction has required the juvenile be detained pending return to that jurisdiction.
These special findings are not required for a juvenile who either has been taken under jurisdiction of the court pursuant to, been adjudicated pursuant to or is currently charged with a violation of delinquency pursuant to Section 211.031.1(3), RSMo.
If the court orders the juvenile continued in detention after the probable cause hearing and detention hearing, the court must review its order of detention every 30 days until a final order of disposition is entered. Supreme Court Rule 127.08(g). The order should include ASFA "contrary to welfare" findings and "reasonable efforts" findings.
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Section 8.12 Court Action Upon Notice that Juvenile is in Detention (Delinquency) |
If the juvenile is court-ordered detained until a detention hearing pursuant to the provisions of Supreme Court Rule 127.07, the court shall conduct such detention hearing within three days excluding Saturdays, Sundays and legal holidays. The detention hearing shall be held within the circuit at a date, time and place convenient to the court. Notice of the date, time and place of the detention hearing, and of the right to counsel, shall be given to the juvenile and the juvenile's custodian in person, by telephone or by such other expeditious method as is available. Supreme Court Rule 127.07(f).
At the detention hearing, the court need not receive testimony but shall receive evidence relevant to the necessity for detention. There is no requirement in Supreme Court Rule 127.08 that the court make any probable cause determination at the detention hearing since the probable cause determination has been made ex parte pursuant to Supreme Court Rule 127.07 at the initial detention order. At the detention hearing, the court shall receive evidence relevant to the necessity of detention of the juvenile. At the conclusion of the hearing the court shall order the juvenile released pursuant to Supreme Court Rule 127.02 or order the juvenile continued in detention pending further proceedings. The juvenile shall not be continued in detention unless the court finds that detention is required:
1. To protect the juvenile,
2. To protect the person or property of others,
3. Because the juvenile may flee or be removed from the jurisdiction of the court,
4. Because the juvenile has no custodian or suitable adult to provide care and supervision for the juvenile and return the juvenile to the court when required, or
5. Because the juvenile is a fugitive from another jurisdiction and an official of that jurisdiction has required the juvenile be detained pending return to that jurisdiction.
The order should include ASFA "contrary to welfare" findings and "reasonable efforts" findings in order to protect any potential claim of federal benefit for the juvenile.
If the court orders detention of a juvenile pending further proceedings, the detention order shall be reviewed by the court every 30 days thereafter until the final order of disposition is entered. Supreme Court Rule 127.08(g).
A written request for release of the juvenile from detention setting forth changed circumstances may be filed by the juvenile, the juvenile's parent, guardian or custodian or by the juvenile officer. Supreme Court Rule 127.09. The court may grant or deny the request without a hearing or may order that a hearing be held at a date, time and place as determined by the court. If a hearing is ordered, notice thereof shall be given to the juvenile, parent, guardian or custodian or counsel for the parent, guardian or custodian and the juvenile officer prior to the hearing. At the hearing, the court may grant the request and release the juvenile or may deny the request and remand the juvenile to the detention facility. Supreme Court Rule 127.09.
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Section 8.13 Effect of Taking Juvenile into Judicial Custody |
The taking of a juvenile into either type of judicial custody (protective custody or detention) shall not be considered an arrest. Supreme Court Rule 127.01(b). See also Section 211.131.1, RSMo. Jurisdiction of the court attaches from the time the juvenile is taken into judicial custody. Supreme Court Rule 127.01(c). See also Section 211.131.3, RSMo.
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Section 8.14 Procedure if Juvenile Released from Judicial Custody Pending |
| Adjudicatory Hearing |
If the juvenile is released pursuant to Supreme Court Rule 127.02, the court may impose other conditions relating to activities of the juvenile and the person to who the juvenile is released. The Rule provides that the court may impose conditions for release. If additional conditions are imposed on the activities of the juvenile, the juvenile shall be notified in writing that failure to adhere to the conditions may result in the court imposing more restrictive conditions or ordering the detention of the juvenile. The person to whom a juvenile is released may be required to sign a written promise to produce the juvenile when ordered by the court. Supreme Court Rule 127.02.
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Section 8.15 Juvenile's Rights During Detention |
Telephone
When admitted to detention, the juvenile may immediately telephone his/her parent, guardian or custodian and his attorney. Thereafter, the juvenile shall be allowed to telephone his/her custodian at reasonable intervals. Supreme Court Rule 127.10(a). The juvenile also may telephone his/her counsel at any reasonable time. Supreme Court Rule 127.10(b).
Visits
Initial visits to the juvenile by the juvenile's parent, guardian or custodian, and attorney may be made at any time. Subsequent to the initial visit, the juvenile may be visited by his/her attorney at any reasonable time and by his/her parent, guardian or custodian during established visiting hours of the facility. Established visiting hours must be regularly scheduled at least three days per week unless otherwise ordered by the court. The court may establish rules permitting visits by other persons. Supreme Court Rule 127.10(c) and (d).
If the juvenile refuses to see his/her custodian, no further visits by the custodian shall be allowed unless authorized by the court or by the juvenile officer. Supreme Court Rule 127.10(e).
Interview/Interrogation
No person except the juvenile's parent, guardian or custodian, or other authorized personnel of the juvenile court shall interview or interrogate a juvenile held in detention unless approval has first been obtained from the juvenile court or the juvenile officer. Supreme Court Rule 127.10(g).
No person shall interrogate a juvenile in a detention facility concerning an alleged violation by the juvenile of a state law or municipal ordinance without the presence of the juvenile’s counsel unless counsel consents or counsel has been waived or has not been retained or appointed, or without the presence of the juvenile’s parent, guardian or custodian unless the presence of the juvenile’s parent, guardian or custodian has been waived. Supreme Court Rule 127.10(f).