Chapter 17: Hearing on Petition
| Section 17.1 |
|
Scheduling |
| Section 17.2 |
Conducting the Hearing |
|
| Section 17.3 |
Presentation of Evidence |
|
| Section 17.4 |
Social Study |
|
| Section 17.5 |
Order of Disposition - Generally |
|
| Section 17.6 |
Abuse/Neglect |
|
| Section 17.7 |
1.126 Status |
|
| Section 17.8 |
Delinquency |
|
| Section 17.9 |
Limitation On |
|
| Section 17.10 |
Restitution Judgment Against Both Parent and Child |
|
| Section 17.11 | Commitment of Child to Department of Mental Health |
|
| Section 17.12 |
Religious Cosiderations in Placement |
|
| Section 17.13 |
Duration of Commitments |
|
| Section 17.14 |
Transmittal of Records |
|
| Section 17.15 |
Effect of Dispositional Order/Evidence |
|
| Section 17.16 |
Child Support |
|
| Section 17.17 |
Court Costs |
|
| Section 17.18 |
Service of Judgment |
|
| Section 17.19 | Control of and Amendment of Judgment |
|
| Section 17.20 |
Timeliness of Motion |
|
| Section 17.21 |
Amendment or Vacation of Judgment by Stipulation |
| |
Section 17.1 Scheduling |
If the juvenile who is the subject of a petition or motion to modify is in detention, the hearing must be scheduled for the "earliest possible date." Supreme Court Rule 127.08(h). The hearing may be held earlier than the scheduled date if both the juvenile and his custodian consent in writing or in open court to the earlier date. If the juvenile is less than 12 years of age only the juvenile's custodian need consent.
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). Distinguished by In the Interest of D.R.F., 58 S.W.3d 93 (Mo. App. E.D. 2001); see also Heartland Acad. Cmty. Church v. Waddle, 317 F. Supp. 2d 984 (8th Circuit Mo. 2004).
It should be noted that the court is required to review orders of detention or protective custody every 30 days until a final order of disposition is entered. Supreme Court Rule 127.08(g). Thus, the court should establish a mechanism for reviewing the orders of detention or protective custody on each juvenile who is awaiting adjudicatory and dispositional hearing.
| |
Section 17.2 Conducting the Hearing |
The procedure to be followed at the hearing may be as formal or informal as the juvenile court judge considers desirable. Section 211.171.1, RSMo.
The order of the proceedings at an adjudication hearing is set forth in Supreme Court Rule 128.02(a). The proceedings should be conducted as follows:
1. The court shall determine whether the juvenile and the 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 court shall determine if 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 court shall determine if 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.
4. The court, on the record, may inquire as follows:
| |
a. The court may inquire of the juvenile as to whether he admits or denies any allegations that constitute the status offense “behavior injurious" or an act of delinquency, or |
| b. The court may inquire of the juvenile and his custodian in any other case whether they admit or deny the |
5. If the facts admitted are sufficient to authorize the court to act under the juvenile code, the court should so find that the allegations of the petition have been established by the admissions. The court may also in its discretion receive evidence to corroborate the admissions.
6. If the allegations are not admitted or the admitted facts are insufficient to authorize the court to act under the juvenile code, the court shall receive evidence upon the allegations of the petition.
7. The court may take judicial notice of the court’s file. The rules of evidence also 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.
| a. After receiving the evidence, the court shall determine whether the allegations of the petition have been established in accordance with the appropriate standard of proof. If the allegations have not been established, the court shall enter a judgment dismissing the petition or motion to modify. Unless the court has prior and continuing jurisdiction, the juvenile shall be ordered discharged and, if appropriate, released from detention, order the juvenile be released to the juvenile’s parent, guardian or custodian or other suitable person; and terminate jurisdiction. | |
| b. If the allegations have been established by admission of the juvenile, the court shall make a finding that the juvenile is present with counsel or, if not, whether the juvenile has knowingly and voluntarily waived the right to counsel, that the court exercises jurisdiction over the juvenile. And findings Supreme Court Rule 128.02. No adjudication by the juvenile court shall be deemed a conviction nor shall the adjudication operate to impose any of the civil disabilities ordinarily resulting from conviction nor shall the child be found guilty or be deemed a criminal by reason of the adjudication. Section 211.271.1, RSMo. |
8. After assuming jurisdiction and findings on the petition or motion to modify the court may order submission of a social study or supplemental social study pursuant to Supreme Court Rules 118.01 and 128.02(f). Dispositional hearing may be continued until a later date pending receipt of the social study provided that if the juvenile is in detention or protective custody, the court may not continue the hearing for more than 30 days unless counsel for the juvenile agrees to such continuance.
9. The court shall then conduct the dispositional hearing, receiving evidence and other relevant data concerning disposition or treatment that should be ordered for the juvenile.
10. 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. Supreme Court Rule 128.02(g).
The court shall allow the victim of any offense to submit a written statement to the court. The court shall allow the victim to appear before the court personally or by counsel for the purpose of making a statement, unless the court finds that the presence of the victim would not serve justice. The victim's statement shall relate solely to the facts of the case and any personal injuries or financial loss incurred by the victim. A member of the immediate family of the victim may appear personally or by counsel to make a statement if the victim has died or is otherwise unable to appear as a result of the offense committed by the child. Section 211.171.8, RSMo. See also Section 595.209, RSMo related to victims' rights.
A judgment assuming jurisdiction may be based upon a stipulation of the parties and if so, cannot thereafter be attacked on appeal since a judgment based upon a stipulation cannot adversely affect a party. In Interest of A.H., 963 S.W.2d 374 (Mo. App. S.D. 1998). Such a stipulation may be properly accepted by the trial court even where a parent disagrees with the underlying facts but agrees to the settlement and agrees to honor its terms. Id.
| |
Section 17.3 Presentation of Evidence |
The parties shall be afforded the opportunity to cross-examine witnesses, to testify, to present evidence and to present arguments to the court concerning the weight, credibility and effect of the evidence. Where the allegations of a petition are denied, the juvenile officer's evidence shall be elicited by counsel for the juvenile officer. If the juvenile officer has no court appointed counsel, the court shall designate counsel who may be the prosecuting attorney or his assistant. Supreme Court Rule 116.03. The hearing may be adjourned from time to time. Section 211.171.2, RSMo.
| |
Section 17.4 Social Study |
The court may order a social study in any case or class of cases. The study shall be made by the juvenile officer or other person designated by the court. The court may specify the time within which the social study shall be completed and submitted to the court. The court may order a supplemental social study at any time. The social study shall not be considered during the adjudicatory phase of the hearing if the allegations of the petition are denied. The social study and any supplements must be made available to the parties and counsel. Supreme Court Rule 118.01.
| |
Section 17.5 Order of Disposition - Generally |
The judgment of disposition is a different and separate order than the finding of jurisdiction. The finding of jurisdiction and the judgment of disposition may occur at the same hearing; however, they constitute two distinct phases to the proceeding. The judgment of disposition must include the disposition or treatment of the juvenile. Supreme Court Rule 128.03(d). The judgment should include ASFA "contrary to welfare" findings and "reasonable efforts" findings if the juvenile is being placed in the custody of the Children’s Division. The court should determine if Children’s Division is excused from making reasonable efforts, and if so hold a permanency hearing within 30 days. If not, decide on permanency plan and hold hearings as often as necessary (at least annually, preferably more often) to insure reasonable efforts are being made to finalize the permanency plan.
The court's order in proceedings regarding the removal of a child from his or her home shall include a determination of whether Children’s Division has made reasonable efforts to prevent or eliminate the need for removal of the child and, after removal, to make it possible for the child to return home. If the first contact with the family occurred during an emergency in which the child could not safely remain at home even with reasonable in-home services, Children’s Division shall be deemed to have made reasonable efforts to prevent or eliminate the need for removal. Section 211.183.1, RSMo. The court, however, must make specific findings of fact related to the fact that there was an emergency. A conclusory finding merely that there was an emergency without specific findings of fact as to what the emergency was is not sufficient. In the Interest of K.L.B., 898 S.W.2d 696 (Mo. App. S.D. 1995); see also Tolbert v. Juvenile Officer (In the Interest of D.T.), 248 S.W.3d 74 (Mo. App. W.D. 2008).
In determining reasonable efforts to be made and in making such reasonable efforts, the child's present and on-going health and safety shall be the paramount consideration.
The
specific findings of fact on the issue of reasonable efforts required to be in
the court's order are contained in Section 211.183.5 (1)-(5), RSMo. These
include: (1) a determination of whether removal of the child is necessary to
protect the child and the reasons for such removal, (2) a description of the
services available to the family before removal of the child including in home
services, (3) a description of the efforts made to provide those services
relevant to the needs of the family before the removal of the child, (4)
specific factual reasons why efforts made to provide family services described
did not prevent removal of the child and (5) a statement that efforts made to
prevent removal of the child were reasonable based upon the needs of the family
and the child.
These findings must be specific findings of fact. Frequently, courts adopt as their findings on the issue of "reasonable efforts" factual matters set forth in an "affidavit of efforts" which is admitted into evidence during the dispositional hearing to establish the factual basis for the findings on "reasonable efforts." The affidavit should not be used if it is objected to and contains hearsay and is not admissible through a hearsay exception. In such event, live testimony should be taken and the court order should recite specific factual findings. In Interest of J.M.C., 920 S.W.2d 173 (Mo. App. W.D. 1996). Cited by A.R.C. v. Greene County Juvenile Office (In the Interest of S.T.C.), 165 S.W.3d 505 (Mo. App. S.D. 2005). The affidavit must contain specific factual statements and not mere conclusions. Rule not found.
Reasonable efforts findings are not required where the child has been taken from the marital home by one parent prior to the institution of the proceedings in juvenile court. In Interest of R.G., 885 S.W.2d 757 (Mo. App. E.D. 1994).
If continuation of reasonable efforts is determined by Children’s Division to be inconsistent with establishing a permanent placement for the child, Children’s Division shall take such steps as are deemed necessary including seeking modification of any court order to modify the permanency plan for the child. Section 211.183.6, RSMo.
Children’s Division may, but shall not be required to make reasonable efforts where a court of competent jurisdiction has determined that:
1. The parent has subjected the child to a severe or recurrent act of physical, emotional or sexual abuse towards the child, including an act incest; or
2. The parent has aided or abetted, attempted, conspired or solicited to commit, or actually committed murder or voluntary manslaughter of another child of the parent or has committed a felony assault that resulted in serious bodily injury to the child or to another child of the parent; or
3. The parent's parental rights to a sibling have been involuntarily terminated. Section 211.183.7, RSMo.
Once the court has determined that reasonable efforts are not required to be made by Children’s Division, the court shall hold a review/permanency hearing within 30 days after such determination. Children’s Division shall then complete whatever steps are necessary to finalize the permanent placement of the child. Children’s Division may concurrently engage in reasonable efforts while engaging in such other measures as are deemed appropriate by Children’s Division to establish a permanent placement for the child. Section 211.183.9, RSMo.
Section 211.181, RSMo contains the authorized dispositions which the court may order. Section 211.181, RSMo is divided by the type of case which the court has heard. Thus, if a child or person 17 years of age has been adjudicated under the abuse/neglect provisions (Section 211.031.1 (1), RSMo), the authorized dispositions are set forth in Section 211.181.1 (1) through (4), RSMo. If a child is adjudicated a status offender pursuant to Section 211.031.1 (2), RSMo, the authorized dispositions are set forth in Section 211.181.2 (1) through (5), RSMo. If a child is adjudicated as a delinquent under Section 211.031.1 (3), RSMo, the authorized dispositions are set forth in Section 211.181.3 (1)-(8), RSMo.
The court may make a parent or guardian a party to any proceeding where the court has jurisdiction pursuant to Section 211.031, RSMo. Section 211.132, RSMo. In addition, the court may require a parent or guardian of a child to participate in any activity the court finds necessary to carry out the purposes of the juvenile code as stated in Section 211.011, RSMo, including, but not limited to, requiring the parent or guardian to attend counseling, requiring the parent or guardian to participate in any institutional treatment program, including attendance at the institution where the child resides. Section 211.134, RSMo.
Commitments to the Division of Youth Services are governed by the standards set forth in Section 219.021, RSMo. A 1995 amendment takes away the minimum 12 year age requirement that previously existed. Thus, any child may be committed to the custody of the Division of Youth Services when the juvenile court determines that a suitable community based treatment service does not exist, or has proven ineffective. Section 219.021.1, RSMo. In addition, a 1995 amendment also repealed the requirement that Division of Youth Services may not keep a child beyond his 18th birth date. Now, the Division shall not keep a child beyond his 18th birth date except upon petition and a showing of just cause, in which case, DYS may maintain custody of the child until the child's 21st birth date. Section 219.021.1, RSMo. Note that a first offender may be committed to the Division of Youth Services only if he is adjudicated as a delinquent under Section 211.031.1 (3), RSMo. A status offender may only be committed to DYS if he is already under court supervision after a prior adjudication as either a status offender or a delinquent offender. Section 219.021.1, RSMo. "Reasonable efforts" findings need not be made where the court has entered an order committing a juvenile to the Division of Youth Services. In Interest of D.M.Y., 892 S.W.2d 792 (Mo. App. S.D. 1995). See also In the Interest of V.F.S., 172 S.W.3d 887, 888 (Mo. App. S.D. 2005).
| |
Section 17.6 Abuse/Neglect |
Authorized dispositions where a child has been adjudicated under the abuse/neglect provisions are as follows:
1. Place the child under supervision in his own home, in the custody of a relative or other suitable person after a home study, upon such conditions as the court may require.
2. Commit the child to the custody of:
| a. A public agency or institution authorized by law to care for children or to place them in family homes except that a child adjudicated under the abuse/neglect provisions may not be committed to the Division of Youth Services. | |
| b. Any other institution or agency authorized or licensed to care for children or placement in family homes. | |
| c. An association, school or
institution willing to receive the child in another state if approval of the
agency in that state which administers the laws relating to importation of
children into the state has been secured (but see Section 211.081, RSMo). |
|
| d. The juvenile officer. |
3. Place the child in a family home.
4. Cause the child to be examined and treated by a physician, psychiatrist or psychologist and if required place the child in a public or private hospital, clinic or institution. (This section does not authorize compulsory medical, surgical or psychiatric treatment where the parents or guardian of the child in good faith are providing other remedial treatment recognized or permitted under the laws of this state.) Section 211.181.1 (1)-(4), RSMo. The juvenile court is without jurisdiction or power to order or authorize the sterilization of a mentally retarded child. In Interest of M.K.R., 515 S.W.2d 467 (Mo. 1974). Cited by Y.O. v. Barton County Juvenile Office (In the Interest of A.H.), 169 S.W.3d 152 (Mo. App. S.D. 2005). Distinguished by Miller v. Russell, 593 S.W.2d 598 (Mo. App. W.D. 1979).
After assuming jurisdiction of the child from one parent, a court is permitted to award custody to the other parent. S.H. v. O.M.H., 796 S.W.2d 71 (Mo. App. E.D. 1990). Cited by A.R. v. R.R., 330 S.W.3d 858, 862 (Mo. App. W.D. 2011). A denial of parent’s visitation is permissible if supported by sufficient evidence. In Interest of R.D. v. J.D., 842 S.W.2d 560 (Mo. App. W.D. 1992). Followed by In Interest N.D., 857 S.W.2d 835 (Mo. App. W.D. 1993). Cited by In the Interest of W.B. v. L.B., 162 S.W.3d 517 (Mo. App. W.D. 2005).
| |
Section 17.7 Status |
Dispositions authorized when a child is adjudicated a status offender are as follows:
1. Place the child under supervision in his own home or in the custody of a relative or other suitable person after proper home study upon such conditions as the court may require.
2. Commit the child to the custody of:
| a. A
public agency or institution authorized to care for children except that a
status offender may be committed to the Division of Youth Services only if he
is presently under the court's supervision after a previous adjudication as
either a status offender or a delinquent. |
|
| b. Any other institution or agency authorized or licensed to care for children or place them in family homes. | |
| c. An
association, school or institution willing to receive the child in another
state if approval of the agency in that state which administers the laws
relating to importation of children has been secured |
|
d. The juvenile officer. |
4. Cause the child to be examined and treated by a physician, psychiatrist or psychologist and if required to be placed in a public or private hospital, clinic or institution for treatment and care. This section does not authorize any form of compulsory medical, surgical or psychiatric treatment of a child whose parents or guardian in good faith are providing other remedial treatment recognized or permitted under the laws of this state. Section 211.181.2 (4), RSMo. The juvenile court is without jurisdiction or power to order or authorize the sterilization of a mentally retarded child. In Interest of M.K.R., 515 S.W.2d 467 (Mo. 1974). Cited by Y.O. v. Barton County Juvenile Office (In the Interest of A.H.), 169 S.W.3d 152 (Mo. App. S.D. 2005). Distinguished by Miller v. Russell, 593 S.W.2d 598 (Mo. App. W.D. 1979).
5. Assess an amount of up to $10.00 to be paid by the child to the clerk of the court.
Note: An order of disposition on a status offender, including a commitment to any state agency, may be suspended and the child placed on probation subject to such conditions as the court deems reasonable. After a hearing, probation may be revoked and the suspended order executed. Section 211.181.2 (5), RSMo.
| |
Section 17.8 Delinquency |
Authorized dispositions for a child adjudicated for delinquency are as follows:
1. Place the child under supervision in his own home or in the custody of a relative or other suitable person after a proper home study upon such conditions as the court may require.
2. Commit the child to the custody of:
| a. A public agency or institution authorized by law to care for children or placement in a family home. | |
| b. Any other institution or agency which is authorized or licensed by law to care for children or to place them in family homes. | |
| c. An association, school or institution willing to receive the child in another state if approval of the agency in that state which administers the laws relating to importation of children in that state has been secured. | |
| d. The juvenile officer. |
3. Place the child in a family home.
4. Cause the child to be examined and treated by a physician, psychiatrist or psychologist and if required place the child in a public or private hospital, clinic or institution. Nothing contained herein authorizes any form of compulsory medical, surgical or psychiatric treatment of a child whose parents or guardian in good faith are providing other remedial treatment recognized or permitted under the laws of this state. Section 211.181.3 (4), RSMo. The juvenile court is without jurisdiction or power to order or authorize the sterilization of a mentally retarded child. In Interest of M.K.R., 515 S.W.2d 467 (Mo. 1974). Cited by Y.O. v. Barton County Juvenile Office (In the Interest of A.H.), 169 S.W.3d 152 (Mo. App. S.D. 2005). Distinguished by Miller v. Russell, 593 S.W.2d 598 (Mo. App. W.D. 1979).
5. Suspend or revoke a state or local license or authority of a child to operate a motor vehicle.
6. Order the child to make restitution or reparation for the damage or loss caused by his offense. In determining the amount or extent of damage, the court may order the juvenile officer to prepare a report and may receive other evidence necessary for such determination. The child and his attorney shall have access to any reports and shall have the right to present evidence at any hearing held to ascertain the amount of damages. Any restitution or reparation orders shall be reasonable in view of the child's ability to make payment or to perform the reparation. The court may require the clerk of the circuit court to act as receiving and disbursing agent for any payment ordered.
Section 211.188, RSMo allows a juvenile court to order a child who has been adjudicated for non-violent crime, and who is 14 years of age or older, to work for any employer at a rate not to exceed minimum wage for a period of time necessary to make restitution. Such a juvenile is not considered an employee as defined in Section 290.500, RSMo (the minimum wage law).
Order the child to a term of community service under the supervision of the court or of an organization selected by the court. This section contains immunity provisions similar to the immunity provisions under Section 211.083.2, RSMo.
7. If a child has been adjudicated of an act that would be a violation of a municipal ordinance or which would be a misdemeanor if committed by an adult, the court may assess an amount of up to $25.00 to be paid by the child to the clerk of the court. If the child has been adjudicated of an act which would have been a felony if committed by an adult, the court may assess an amount of up to $50.00 to be paid by the child to the clerk of the court.
Execution of any dispositional order entered by the court for a delinquent child may be suspended and the child placed on probation subject to such conditions as the court deems reasonable. After a hearing, probation may be revoked and the suspended order executed. Section 211.181.3(8), RSMo.
| |
Section 17.9 Limitation On |
In ordering implementation of a permanency treatment plan, the juvenile court judge shall not order treatment with a specific provider, but may reasonably designate the scope and extent of the services to be provided by the Department of Social Services or any of its divisions (usually this means Children’s Division or Division of Youth Services). Section 211.081.2, RSMo.
| |
Section 17.10 Restitution Judgment Against Both Parent and Child |
In addition to the court's authority to issue an order for the child to make restitution or reparation for damage or loss caused by his offense provided in Section 211.181.3(3)(7), RSMo, the court may also enter a judgment of restitution against both the parent and the child if:
1. The court finds that the parent has failed to exercise reasonable parental discipline or authority to prevent the damage or loss; and
2. The child has:
| a. Stolen, damaged, destroyed, converted, unlawfully obtained, or substantially decreased the value of the property of another, or | |
| b. Inflicted personal injury on another requiring the injured person to incur medical, dental, hospital, funeral or burial expenses. Section 211.185.1, RSMo. |
The restitution permitted by Section 211.185.1, RSMo can be ordered by the court to be paid to the victim, any governmental entity or a third-party payer, including an insurer, that has made payment to the victim to compensate the victim for a property loss or a pecuniary loss provided that loss falls within the description of losses contemplated by Section 211.1851 (1) (2), RSMo. Restitution payments to the victim have priority over restitution payments to a third-party payer. Section 211.185.3, RSMo. Payment of restitution to a victim also has priority over payment of restitution to a governmental entity. Section 211.185.4, RSMo.
The court may order the child to make restitution to the wronged person personally, provided the court has considered the age and circumstances of the child. Section 211.185.5, RSMo.
If the court intends to enter an order of restitution against both a parent and a child pursuant to Section 211.185, RSMo, the court must hold a "restitution hearing" to determine the liability of the parent and the child. Section 211.185.6, RSMo. The restitution hearing must be held not later than 30 days after the dispositional hearing, but may be extended by the court for good cause. Section 211.185.6, RSMo. At the restitution hearing contemplated by Section 211.185.6, RSMo, written statements or bills for medical, dental, hospital, funeral or burial expenses constitute prima facie evidence that the amount indicated on the written statement or bill represents a fair and reasonable charge for the services or materials provided. The burden of proving that the amount indicated on the written statement or bill is not fair and reasonable rests upon the person challenging the fairness and reasonableness of the amount. Section 211.185.6, RSMo. If the court intends to enter a judgment of restitution against a parent, the court must provide the parent reasonable opportunity to be heard and to present appropriate evidence in his behalf. The parent shall be advised of his right to obtain counsel for representation at the hearing. Section 211.185.7, RSMo. A hearing under
Section 211.185.6, RSMo may be held as part of either an adjudicatory or a dispositional hearing. Section 211.185.7, RSMo.
A restitution judgment entered under Section 211.185, RSMo may be enforced in the same manner as enforcing monetary judgments. Section 211.185.8, RSMo. In addition, total restitution paid by the child and his parents pursuant to Sections 211.185, 8.150 and 537.045, RSMo shall not exceed $4,000.00. Section 211.185.9, RSMo. See also Section 537.045, RSMo.
| |
Section 17.11 Commitment of Child to Department of Mental Health |
The juvenile court is permitted, under limited circumstances, to commit a child to the Department of Mental Health. Whether the commitment or placement of the child with the Department of Mental Health is for purposes of detention pursuant to Section 211.151, RSMo, for purposes of physical or mental examination pursuant to Section 211.161, RSMo, or for purposes of disposition pursuant to Section 211.181, RSMo, if the court intends to commit the child to the Department of Mental Health for longer than 30 days, the court must follow the specific procedure mandated in Sections 211.201 to 211.207, RSMo.
Generally, the juvenile court loses jurisdiction of a child committed to the Department of Mental Health unless, by the terms of its order, the court expressly retains jurisdiction of the child. Section 211.201.2, RSMo. In addition, normally the custody of the Department of Mental Health terminates when the child reaches 18 years of age. The child may, however, be held in the custody of the Department of Mental Health beyond his 18th birthday provided an express court order is entered after a hearing held within 30 days of the child's 18th birthday. Section 211.201.3, RSMo. The Department of Mental Health is required to notify the court 30 days before the child's 18th birthday that the department shall discharge the child unless the court sets the matter down for hearing. The court may then, on its own motion, or the motion of any interested party, give proper notice of the hearing before the child's 18th birthday to the director of the Department of Mental Health and the other parties as required by law. Section 211.201.3, RSMo.
The basic procedure the court must follow if it intends to commit a child to the Department of Mental Health is set forth in Sections 211.202 and 211.203, RSMo. Section 211.202 RSMo sets forth the procedure to be followed for mentally disordered children other than mentally retarded or developmentally disabled children. Section 211.203, RSMo sets forth the procedure to be followed for mentally retarded or developmentally disabled children. The term "mentally retarded or developmentally disabled" is defined in Chapter 630, RSMo.
The procedures are similar and basically proceed as follows:
1. Evaluation by Department of Mental Health may be ordered by the court on its own motion or by the court on the motion or petition of any interested party. Section 211.202.1 (mentally disordered child), Section 211.203.1 (MRDD child), RSMo.
2. Evaluation shall be performed within 20 days, on an outpatient basis if practicable, for the purpose of determining whether inpatient admission is appropriate (in the case of a mentally disordered child), or whether referral to an MRDD facility is appropriate (in the case of an MRDD child). Section 211.202.2 (mentally disordered child), Section 211.203.2 (MRDD child), RSMo.
3. If it is determined as a result of the evaluation that admission is appropriate and that suitable accommodations are available, notice shall be sent to the juvenile court together with a copy of the evaluation. Section 211.202.3 (mentally disordered child), Section 211.203.3 (MRDD child), RSMO.
4. If inpatient care is recommended, the child, parent, guardian or attorney shall have the right to request an independent evaluation of the child. Section 211.202.3 (mentally disordered child), Section 211.203.3 (MRDD child), RSMo.
5. Within 20 days of receipt of the notice from the Department of Mental Health recommending the child for admission, or within 20 days of receipt of a notice of evaluation from an independent examiner, the court may order, pursuant to a hearing, the child committed to the Department of Mental Health for inpatient care and treatment except that no child shall be committed to the Department of Mental Health for other than inpatient care and treatment. Section 211.202.3 (mentally disordered child), Section 211.203.3 (MRDD child), RSMo. In the case of an MRDD child, if the Department of Mental Health proposes placement at, or the transfer of a child to, a facility other than the facility designated in the order of the juvenile court, the Department of Mental Health must conduct a due process hearing within 6 days of such placement or transfer during which the head of the initiating facility has the burden to show that placement or transfer is appropriate for the medical needs of the child. The head of the facility shall notify the court and the child's last known attorney of such placement or transfer. Section 211.203.3, RSMo (applies only to MRDD child).
6. If it is determined after the court ordered evaluation that admission is not appropriate, the head of the mental health facility shall send to the court a notice together with a copy of the evaluation. If such determination is made by the Department of Mental Health, the juvenile court "shall transfer" the child from the Department of Mental Health within the time period specified (20 days of receipt of the notice of evaluation in the case of a mentally disordered child, five days after receiving the notice and evaluation in the case of an MRDD child) or set the matter for hearing within 20 days giving notice to the director of the mental health facility as well as all others required by law. Section 211.202.4 (mentally disordered child), Section 211.203.4 (MRDD child), RSMo.
If a child has been committed to the Department of Mental Health pursuant to these procedures, and the facility determines that said treatment is no longer appropriate, the head of the facility may refer the child for placement pursuant to Section 630.610, RSMo. If the child qualifies for a placement under Section 630.610, RSMo the Department of Mental Health shall place the child subject to availability of an appropriate placement. If no appropriate placement is available, the Department of Mental Health shall discharge the child or make other arrangements as it deems appropriate and consistent with the child's welfare and safety. Notice of the placement or discharge shall be sent to the juvenile court which first ordered the child's detention. Section 211.202.5 (mentally disordered child), Section 211.203.5 (MRDD child), RSMo.
7. Review hearings of children placed in the Department of Mental Health must be conducted at least annually. Section 211.202.6 (mentally disordered child), Section 211.203.6 (MRDD child), RSMo.
8. The Department of Mental Health shall discharge a child if it is determined in an evaluation or periodic review that any of the following conditions are true:
| a. The child no longer has a mental disorder other that intellectual disability or developmental disability; | |
| b. The child is not intellectually disabled or developmentally disabled; | |
| c. The condition of the child is no longer such that, for protection of the child or others, the child requires inpatient hospitalization or residential habilitation; | |
| d. The mental health facility or developmental disability facility does not offer a program which best meets the child's needs. | |
| e. The
mental health facility or developmental disability facility does not provide
the least restrictive environment as defined in Section 630.005, RSMo, which is
consistent with the child's welfare and safety. Section 211.206.2 (1)-(5),
RSMo. |
9. If the committing court has specifically retained jurisdiction of a child, notice of the discharge, accompanied by a diagnosis and recommendation for placement shall be forwarded to the court at least 20 days before such discharge date. Unless within 20 days of receipt of the notice of discharge the juvenile court orders the child brought before it for appropriate proceedings, jurisdiction of the juvenile court over the child shall terminate at the end of such 20 day period. Section 211.206.3, RSMo.
Section 211.207, RSMo governs the procedure for committing a child to the Department of Mental Health where a child has been committed to the Division of Youth Services and subsequently appears to be mentally disordered. The procedures set forth in Section 211.207, RSMo do not directly involve the juvenile court per se since the juvenile court usually loses jurisdiction over the child when the child is committed to the Division of Youth Services. The procedures set forth in Section 211.207, RSMo are similar to those set forth in Sections 211.202 and 211.203, RSMo, but because the child is in the custody of the Division of Youth Services, all of the notices, referrals, reports and decisions regarding the transfer of custody of the child between and among the Division of Youth Services and the Department of Mental Health involve the heads of those two agencies or their respective designees.
| |
Section 17.12 Religious Considerations in Placement |
Section 211.221, RSMo requires that the court "whenever practicable" select either a person, agency or institution governed by persons of the same religious faith as that of the parents of the child, or in the case of a difference in the religious faith of the parents, then of the religious faith of the child, or if the religious faith of the child is not ascertainable, then of the faith of either of the parents.
Section 211.221, RSMo is directory and tips the scale only when the temporal interests are in balance. In Interest of J.L.H., 647 S.W.2d 852 (Mo. App. W.D. 1983). Followed by Campbell v. Campbell (In re Marriage of Campbell), 868 S.W.2d 148 (Mo. App. S.D. 1993). Followed by Allen v. Allen, 330 S.W.3d 838 (Mo. App. S.D. 2011). Cited by S.M. v. E.M.B.R. (In re C.M.B.R.), 332 S.W.3d 793 (Mo. 2011). Distinguished by K.W. v. Missouri Div. of Family Services, 694 S.W.2d 915 (Mo. App. E.D. 1985). If evidence shows that individuals are better able to provide a custodial home than other individuals, the fact that such individuals are not persons of the same religious faith as the child's parents is not applicable. Id.
| |
Section 17.13 Duration of Commitments |
All commitments made by the juvenile court shall be for an indeterminate period of time, unless the child is committed pursuant to subdivision 3 of subsection 3 of Section 211.181, RSMo and shall not continue beyond the child's 21st birthday. Section 211.231.1, RSMo.
The court may make further directions as to placement with the Division of Youth Services concerning the child's length of stay. The length of stay order may set forth a minimum review date. Section 211.181.3 (3), RSMo.
The court may set forth in the order of commitment the minimum period during which the child shall remain in the custody of the Department of Social Services or any of its divisions. Section 211.181.4, RSMo. Thereafter, the Department of Social Services shall not discharge a child from the custody of the Division of Youth Services before the child completes the length of stay determined by the court in the commitment order unless the committing court orders otherwise. Section 211.181.4, RSMo.
The Director of the Division of Youth Services may, at any time, petition the court for a review of the child's length of stay and commitment order and the court may, upon a showing of good cause, order the early discharge of the child from the custody of the Division of Youth Services. Id. The Department of Social Services may discharge the child from the Division of Youth Services without a further court order after the child completes the length of stay determined by the court, or, the Department of Social Services may retain the child for any period after the completion of the length of stay in accordance with the law. Id.
A Division of Youth Services commitment is civil, not criminal, in nature and accordingly, the use of a 1995 amendment to extend the period of commitment at Division of Youth Services does not constitute an ex post facto application of a law where a juvenile was originally committed to Division of Youth Services prior to the 1995 amendment. In Interest of R.L.C., Jr., 967 S.W.2d 674 (Mo. App. S.D. 1998). Cited by In re N.J., 343 S.W.3d 362 (Mo. App. S.D. 2011).
| |
Section 17.14 Transmittal of Records |
Whenever the court commits a child to an institution or agency, a summary of its information concerning the child shall be transmitted with the order of commitment. Section 211.231.2, RSMo. In addition, the institution or agency to whom the child is committed shall give the court such information concerning the child as the court may require from time to time so long as the child is under the jurisdiction of the juvenile court. Section 211.231.2, RSMo.
| |
Section 17.15 Effect of Dispositional Order/Evidence |
The disposition made of a child and the evidence given in the court does not operate to disqualify the child in any future civil or military service application or appointment. Section 211.271.4, RSMo.
| |
Section 17.16 Child Support |
When a child is found to come within the jurisdiction of the juvenile court pursuant to Section 211.031, RSMo, the court may in the same or subsequent proceeding, either on its own motion or upon application of any person, institution or agency having the custody of such child, proceed to inquire into the ability of the parent of the child to support the child or to contribute to the child's support. Section 211.241.1, RSMo. If the parent does not appear voluntarily for the proceeding, he may be summoned in the same manner as in civil cases. Section 211.241.1, RSMo.
If the court finds the parent is able to support the child or contribute to the child's support, the court may enter an order requiring the parent to support the child or to contribute to the support of the child, and to pay the costs of collecting a judgment. Section 211.241.2, RSMo. The child support order may be enforced by execution which may issue on the request of the juvenile officer of any person, agency or institution which has been awarded custody of the child. Section 211.241.3, RSMo. No deposit or bond for costs shall be required as a condition of the issuance or service of an execution on a juvenile court child support order issued on request of the juvenile officer or the person, agency or institution having custody of the child. Section 211.241.3, RSMo. No property is exempt from execution upon a judgment or decree made under Section 211.241, RSMo, and all wages or other sums due the parent is subject to garnishment or execution in any proceedings under Section 211.241, RSMo. Section 211.241.3, RSMo.
The court may order a parent or guardian to support a child committed for institutionalization by paying the reasonable costs of support, maintenance and treatment of the child if the parent is financially able to pay. Section 211.134.2, RSMo.
| |
Section 17.17 Court Costs |
The costs of the proceedings may, in the discretion of the court, be adjudged against the parents of the child involved or the informing witness, as the case may be and collected as provided by law. Section 211.281, RSMo. All costs not so collected shall be paid by the county. Id.
Attorney's fees of appointed counsel in juvenile court matters are not "costs" and the county is not required to pay appointed attorneys who represent indigent juveniles. State ex rel. Cain v. Mitchell, 543 S.W.2d 785 (Mo. 1976). Followed by In re Interest of B., 642 S.W.2d 643 (Mo. 1982). Questioned & Criticized in In Interest of M.V., 775 S.W.2d 262 (Mo.App. W.D. 1989).
The fee of a guardian ad litem may not be assessed against the Children’s Division in a neglect action. C.D.S. v. Missouri Division of Family Services, 652 S.W.2d 233 (Mo. App. E.D. 1983). Followed by K.L.W. v. Missouri Div. of Family Services, 655 S.W.2d 122 (Mo. App. W.D. 1983). Cited by In the Interest of A.M., 236 S.W.3d 106 (Mo. App. S.D. 2007).
| |
Section 17.18 Service of Judgment |
When a judgment is entered, the clerk shall serve a copy of the judgment entry and a notice of entry of judgment form substantially in the form recommended in Supreme Court Rule 128.21 by mail in the manner prescribed in Rule 43.01, or by hand delivery, upon every party affected thereby including those not present.
| |
Section 17.19 Control of and Amendment of Judgment |
The court retains control over its judgment during the 30 day period after entry thereof and may vacate, reopen, correct or amend its judgment for good cause within that time. Supreme Court Rule 119.02 (a).
| Section 17.20 Timeliness of Motion |
Any party may move at any time in writing to modify a judgment or to terminate jurisdiction. Supreme Court Rule 119.03(c). The court may overrule such motion to modify or to terminate jurisdiction without a hearing or may conduct a hearing and enter orders as the court deems proper.
| |
Section 17.21 Amendment or Vacation of Judgment by Stipulation |
After the filing of a notice of appeal, but before the filing of the transcript on appeal in the appellate court, the trial court may, after expiration of the 30 day period, vacate or amend or modify the judgment upon stipulation of the parties accompanied by a withdrawal of the appeal. Supreme Court Rule 119.02(d).
When a juvenile has been placed in the legal custody of the Children’s Division by the court, the court must hold dispositional review hearings every 90 to 120 days after the dispositional hearing for the first 12 months that the juvenile is in the custody of the Children’s Division. Supreme Court Rule 124.01(b)(1). Within 12 months of the juvenile’s initial placement into judicial custody, the court shall conduct a permanency hearing as provided in Supreme Court Rule 124.09. Supreme Court Rule 124.01(b)(2). After such permanency hearing, a permanency review hearing shall be conducted at least every six months thereafter. Supreme Court Rule 124.01(b)(3).