Supreme Court of Missouri
en banc

In re:

(1) Repeal of subdivision 117.02, entitled "Admission to Hearings," and the comment thereto, of Rule 117, entitled "Rules Applicable to All Hearings," and in lieu thereof adoption of a new subdivision 117.02, entitled "Open Hearings," and a comment thereto.

(2) Adoption of a new subdivision 119.10, entitled "Continuances," and a new subdivision 119.11, entitled "Untimely Hearings," of Rule 119, entitled "Hearing on Petition."

(3) Repeal of subdivision 122.02, entitled "Juvenile Court Records to be Confidential," of Rule 122, entitled "Rights of Juveniles," and in lieu thereof adoption of a new subdivision 122.02, entitled "Open Records."


1.  It is ordered that effective January 1, 2006, subdivision 117.02 of Rule 117 and the comment thereto be and the same are hereby repealed and a new subdivision 117.02 and a new comment thereto adopted in lieu thereof to read as follows:

117.02  OPEN HEARINGS

a.  Hearings conducted pursuant to section 211.031.1(1), RSMo, and for termination of parental rights pursuant to sections 211.442 to 211.487, RSMo, initiated by the juvenile officer or children’s division shall be open to the public, except that the public shall be excluded from all such hearings during the testimony of any juvenile or victim. 

b.  Hearings for adoption pursuant to chapter 453, RSMo, shall not be open to the public.

c.  Prior to, or anytime after, commencement of a hearing under Rule 119.01b or 119.01c, a party or the guardian ad litem may request that the hearing, or any portion thereof, be closed to the public, except that no such request may be made by the juvenile officer or children’s division.

d.  The court shall hear argument by the parties, including the juvenile officer and children’s division, and the guardian ad litem but not evidence on any request that a hearing, or any portion thereof, be closed to the public.

e.  The court shall make written findings in the record detailing the specific reasons for closing a hearing, or any portion thereof, to the public.

f.  The court shall close a hearing, or any portion thereof, to the public only if it finds that closure:

(1) is in the best interests of the juvenile;

(2) will protect the physical or emotional well-being of the juvenile or the safety of any other person;

(3) will promote the integrity of the fact-finding process; or

(4) will protect the privacy of the juvenile or a sibling, foster or adoptive parents, foster care institutions, or any other person or institution providing out of home care for the juvenile.

g.  The court, on its own motion or on motion of any party, may exclude for good cause shown or for exceptional circumstances any person or persons from a hearing or any portion thereof.

h.  The court shall make findings on the record detailing the specific reasons for excluding any person or persons from a hearing or any portion thereof.

i.  Closing a hearing or any portion thereof or excluding any person or persons from a hearing or any portion thereof shall not prevent the court from holding the hearing or issuing a decision.

j.  Any party entitled to summons shall have the right to attend all hearings to which the summons relates.

k.  Any person entitled to notice pursuant to Rule 111.14a shall have the right to attend all hearings to which the notice relates unless specifically excluded pursuant to Rule 117.02g.

l.  The public may not make audio or video recordings of a hearing, or any portion thereof, or photograph any party or witness during a hearing. 

m.  Without prior specific authorization from the court, foster or adoptive parents, foster care institutions, and other persons and institutions providing out of home care for the juvenile shall not:

(1) submit to audio or video recordings regarding the juvenile; nor

(2) permit photographing or audio or videotaping of the juvenile, by the public.


Comment


Source: Sections 211.319.1 and 211.319.2, RSMo.

In determining whether to close a hearing under this Rule 117.02, the court may consider whether any member of the public may intentionally or inadvertently, but unnecessarily, disclose personal identifying information, such as the name, address, date of birth and telephone number, of the juvenile or a sibling, foster or adoptive parents, foster care institutions, or other persons and institutions providing out of home care for the juvenile or a sibling.

Upon conclusion of a hearing in a proceeding governed by this Rule 117.02, the juvenile officer, attorney for the juvenile officer, children’s division, guardian ad litem or court appointed special advocate may provide, but is not limited to providing, the following information about the hearing: (1) style of the case, (2) nature of the case; e.g., abuse or neglect, (3) hearing date, (4) result or outcome of the hearing; e.g., juvenile returned to parents, and (5) next hearing date.

2.  It is ordered that effective January 1, 2006, a new subdivision 119.10 and a new subdivision 119.11 of Rule 119 and the comments thereto be and the same are hereby adopted to read as follows:

119.10 CONTINUANCES

a. Except for a protective custody hearing held pursuant to Rule 111.14, the court may, on its own motion or the motion of any party, continue any hearing in a proceeding filed pursuant to section 211.031.1(1) RSMo:

(1) within the time frames in Rule 119.01, only for good cause shown, or

(2) outside the time frames in Rule 119.01, only for compelling extenuating circumstances. 

Any such continuance shall be supported by written findings in the record detailing the compelling extenuating circumstances justifying the continuance.

b.  Any continuance granted under this Rule 119.10 shall be to a fixed date and time but, in the absence of the consent of all parties, not beyond 30 days.

c.  An application for continuance under this Rule 119.10 shall be made by written motion accompanied by the affidavit of the applicant or some other credible person setting forth the facts upon which the application is based unless all parties consent that the application for continuance may be made orally.

d.  Any application for continuance under this Rule 119.10 filed by counsel within 30 days of a scheduled hearing shall certify that each party for whose benefit the continuance is requested has been consulted and that each such party is aware of the contents of the application and shall state each such party’s position with respect to the requested continuance.

e.  If a party for whose benefit the continuance is requested cannot be consulted, counsel shall certify in the application for continuance the efforts made to consult with the party. 

f.  The clerk of the court shall give notice in writing of the new date and time of the continued hearing to all parties, including the parents, guardian or custodian, children’s division or other legal custodian and guardian ad litem and to the court appointed special advocate for the juvenile.  The current foster parents or any pre-adoptive parent or relative currently providing care for the juvenile shall also be provided with such notice.

g.  Any continuance under this Rule 119.10 shall not relieve the court of the obligation to make timely findings on whether:

(1) the children’s division made, or is deemed to have made, reasonable efforts to prevent removal of the juvenile from the home; or

(2) the children’s division has made reasonable efforts to finalize the permanency plan in effect for the juvenile.


Comment


Source: Section 211.171.7 RSMo.

This Rule 119.10 is patterned after Rule 65.01, except that any continuance shall not only be to a fixed date but also to a fixed time, and after Rule 65.03, except that all parties, not just the adverse party, must consent to an oral application for continuance.  Further, this Rule 119.10 specifically advises counsel that any application for continuance on behalf of a party who cannot be consulted must contain counsel’s efforts to consult with the party.
The failure to make the specified reasonable efforts findings within the time frames required by Titles IV-B and IV-E of the Social Security Act may result in loss of federal funds not only for the care of a particular juvenile but also for the state’s child welfare programs.  Therefore, even when a continuance is granted, the court remains obligated under Rule 119.10g to make findings within the mandatory timeframes under the Adoption and Safe Families Act on the specified reasonable efforts required of the children’s division.

119.11 UNTIMELY HEARINGS

a.  All hearings in a proceeding filed pursuant to section 211.031.1(1), RSMo, shall be held within the mandatory time frames in Rules 119.01b and 119.01c.

b.  If a specific hearing in a proceeding filed pursuant to section 211.031.1(1), RSMo, is neither scheduled to occur nor held within the applicable time frame in Rules 119.01b and 119.01c, any party may file an application for an expedited hearing.

c.  The application shall be in writing and include the name and address of the applicant, the name of the judicial officer before whom the proceeding is pending, the specific hearing not held within the applicable time frame, and the reasons expressed by the named judicial officer for failing to hold the specified hearing within the applicable time frame in Rules 119.01b and Rules 119.01c.

d.  The application shall be filed with the clerk of the court in the pending proceeding.  A copy of the application shall be directed by the applicant to the presiding judge of the circuit, the named judicial officer, and all parties and other persons entitled to notice under Rule 111.14a.

e.  The named judicial officer shall either hold and conclude the specified hearing or file a response within ten days after receiving the application.  The response shall detail the reasons why the specified hearing was not held within the applicable time frame in Rule 119.01b and Rule 119.01c.

f.  The response shall be filed with the clerk of the court in the pending proceeding.  A copy of the response shall be directed by the named judicial officer to the presiding judge of the circuit, the applicant and all parties and other persons entitled to notice under Rule 111.14a.

g.  Within five days after the filing of the response or after the date on which the response is due, the presiding judge, in the absence of compelling extenuating circumstances, shall direct the named judicial officer, designate another judicial officer from inside the circuit, or request this Court to appoint a judicial officer from outside the circuit to hold and conclude the specified hearing within 14 days from the date of the order of the presiding judge or the date of the order of appointment by this Court.

h.  If the presiding judge finds that compelling extenuating circumstances exist, the presiding judge shall deny the application.

i.  If the presiding judge of the circuit is the named judicial officer, any party may seek an original writ from the appropriate appellate court pursuant to Rule 84.22 et seq.


Comment


Source: Section 211.032.6, RSMo.

Rule 119.10 permits hearings, other than protective custody hearings, to be continued outside the time frames established in Rules 119.01b and 119.01c only for compelling extenuating circumstances.  Rule 111.14c governs continuances of protective custody hearings.

Rule 119.11b provides parties with an expedited procedure to address the failure of the court to hold a hearing in a proceeding filed pursuant to section 211.031.1(1), RSMo, within the applicable time frame in Rule 119.01.
See Court Operating Rule 23, which requires each circuit to submit to this Court and the commission on retirement, removal and discipline a quarterly report for each hearing in a proceeding filed pursuant to section 211.031.1(1), RSMo, not held within the applicable time frame in Rule 119.01.

3.  It is ordered that effective January 1, 2006, subdivision 122.02 of Rule 122 and the comment thereto be and the same are hereby repealed and a new subdivision 122.02 and a new comment thereto adopted in lieu thereof to read as follows:

122.02 OPEN RECORDS

a.  Upon written request, pleadings and orders of the court filed with the clerk of the court in any proceeding pursuant to section 211.031.1(1), RSMo, and for termination of parental rights pursuant to sections 211.442 to 211.487, RSMo, initiated by the juvenile officer or children’s division shall be accessible to the public for inspection, copying and release, except that such pleadings and orders of the court shall be accessible to the public only if the initial pleading in the proceeding was filed with the clerk of the court on or after January 1, 2006.

b.  Pleadings and orders of the court filed with the clerk of the court in any proceeding for adoption pursuant to chapter 453, RSMo, shall not be accessible to the public.

c.  Confidential files, as defined in section 211.319.3, RSMo, and files and records specifically ordered closed by the court shall be accessible only to persons the court has determined to have a legitimate interest in such files and records.

d.  In determining whether a person has a legitimate interest, the court shall consider the nature of the proceedings, the welfare and safety of the public, and the interest of the juvenile and any other juvenile identified in the file or records.
e.  The original file and records may not be removed from the area designated for public inspection of such files and records.

f.  Prior to allowing inspection of any pleadings or orders of the court by the public, the clerk of the court shall redact all information that may identify or lead to disclosure of the identity of any of the following:

(1) any juvenile, except the perpetrator;

(2) any foster or adoptive parents, foster care institutions, or other persons and institutions providing out of home care to any juvenile; and

(3) any reporter of child abuse under sections 210.109 to 210.183, RSMo, or section 352.400, RSMo.

g.  Upon motion and opportunity for argument, the court may issue an order prohibiting access by the public to specific pleadings and orders of the court upon a showing of exceptional circumstances.

The court may issue a protective order on its own motion but, upon the request of any person, shall hear argument on the propriety of such order as soon as practicable.  Any protective order shall detail the specific reasons for prohibiting access by the public to any pleading or order of the court.

h.  Pleadings and orders of the court accessible to the public under this Rule 122.02 shall be available for inspection and copying only during regular business hours.  Access shall be governed by Court Operating Rule 2.

i.  Except where authorized by court order, the public shall not have access to any files or records maintained in electronic format in court information systems.

j.  Neither the office of state courts administrator nor any court shall be required to modify electronic information systems to comply with this Rule 122.02.


Comment


Source: Section 211.319.3, RSMo.

This Rule 122.02 does not prohibit distribution among parties and the children’s division of any written reports, social records and other documents to be presented at any hearing for the court to review and consider.  However, all written reports, social records and other documents received by the court into evidence at a hearing are not accessible to the public under this Rule 122.02.

4.  It is ordered that notice of this order be published in the Journal of The Missouri Bar.

5.  It is ordered that this order be published in the South Western Reporter.

Day - to - Day

______________________
RONNIE L. WHITE
Chief Justice