Supreme Court of Missouri
en banc

In re:

(1) Repeal of subdivision 111.13, entitled "Court Action Upon Notice that Juvenile Is in Protective Custody," and subdivision 111.14, entitled "Protective Custody Hearing," of Rule 111, entitled "Custody and Detention," and in lieu thereof adoption of a new subdivision 111.13, entitled "Court Action Upon Notice that Juvenile Is in Protective Custody," and a new subdivision 111.14, entitled "Protective Custody Hearing."
(2) Repeal of subdivision 119.01, entitled "Scheduling the Hearing," of Rule 119, entitled "Hearing on Petition," and in lieu thereof adoption of a new subdivision 119.01, entitled "Schedule of Hearings."


1.  It is ordered that effective February 1, 2005, subdivisions 111.13 and 111.14 of Rule 111 be and the same are hereby repealed and a new subdivision 111.13 and a new subdivision 111.14 adopted in lieu thereof to read as follows:

111.13 COURT ACTION UPON NOTICE THAT JUVENILE IS IN PROTECTIVE CUSTODY

a.  An order for protective custody shall be entered only:
(1) upon the filing of a petition or motion to modify, and
(2) upon a determination by the court that probable cause exists to believe that:
(a) the facts specified in the petition or motion to modify bring the juvenile within the jurisdiction of the court under subdivision (1) of subsection 1 of section 211.031, RSMo, and
(b) the conditions requiring protective custody continue to exist.

b.  When the court is presented with a petition or motion to modify requesting that the juvenile be placed or continued in protective custody, it shall examine the reasons therefor and shall immediately:
(1) appoint a guardian ad litem; and
(2) determine and make a finding on whether continuation of the juvenile in the home is contrary to the juvenile's welfare; and
(3) either:
(a) order the juvenile released pursuant to Rule 111.02; or
(b) order the juvenile continued in protective custody.

c.  Upon written motion and good cause shown, the court may extend temporary protective custody for a period not to exceed twenty-four hours.

d.  If the juvenile is continued in protective custody, the court shall hold a protective custody hearing within three days, excluding Saturdays, Sundays, and legal holidays, of the date the juvenile is taken into protective custody pursuant to Rules 111.11, 111.12 or 111.13.

111.14  PROTECTIVE CUSTODY HEARING

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

b.  The inability of the juvenile officer to notify any party or other individual designated in this Rule 111.14 of the protective custody hearing or the absence of any party or such individual at the protective custody hearing shall not prevent the court from conducting the protective custody hearing as scheduled.

c.  Upon the motion of any party or upon its own motion, the court may continue the protective custody hearing to a date not later than fourteen days from the date the juvenile is taken into protective custody.  Any continuance shall be supported by written findings or specific findings on the record detailing the extenuating circumstances justifying the continuance.

d.  At the protective custody hearing, the court shall inform the juvenile's parents or custodian of the right to counsel

e.  The protective custody hearing shall be held on the record.  The procedure to be followed at the hearing shall be determined by the court and may be as formal or informal as the court considers appropriate, consistent with constitutional and statutory requirements.  The court may take testimony or receive evidence.  Any 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 protective custody hearing.

f.  At the protective custody hearing, the court shall determine and make findings on the following issues:
(1) whether the juvenile can safely return home immediately; and
(2) either:
(a) whether the children’s division made reasonable efforts to prevent, or eliminate the need for, removal of the juvenile from the home; or
(b) whether an emergency required the juvenile to be taken into protective custody and that, as a result, the children’s division is deemed to have made reasonable efforts to prevent removal of the juvenile from the home; and
(3) whether continuation of the juvenile in the home is contrary to the juvenile’s welfare.

g.  At the protective custody hearing, the court also shall consider and enter orders as appropriate on the following issues:
(1) whether the court has appointed a guardian ad litem for the juvenile;
(2) whether to appoint a court-appointed special advocate for the juvenile;
(3) whether the parents or custodian of the juvenile are entitled to appointed counsel;
(4) whether the parent requires a guardian ad litem because of the parent’s age or mental status;
(5) whether the paternity of the juvenile has been previously established;
(6) whether any absent parent or custodian of the juvenile has received notice of the protective custody hearing;
(7) whether there are appropriate relatives or kinship providers with whom the juvenile can be placed;
(8) whether the proposed placement for the juvenile is the most appropriate placement, consistent with the best interests and needs of the juvenile;
(9) whether arrangements should be made for visitation by the juvenile with the parents or custodian, siblings and other family members;
(10) whether disruption of the juvenile’s schooling can be avoided;
(11) whether the juvenile has special needs that should be assessed to determine if services may need to be immediately provided;
(12) whether the children's division has offered services to the juvenile's parents or custodian; and
(13) whether the juvenile is an Indian child as defined in 25 U.S.C. section 1903.


h.  At the conclusion of the protective custody hearing, the court shall:

(1) order the juvenile released pursuant to Rule 111.02; or

(2) order the juvenile continued in protective custody pending further proceedings.

2.  It is ordered that effective February 1, 2005, subdivision 119.01 of Rule 119 be and the same is hereby repealed and a new subdivision 119.01 adopted in lieu thereof to read as follows:

119.01. SCHEDULE OF HEARINGS

a.  If the juvenile who is the subject of the petition or motion to modify is in detention, the hearing to adjudicate the petition or motion to modify shall be scheduled for the earliest possible date.

b.  If the juvenile who is the subject of the petition or motion to modify is in protective custody, the following hearings shall be held:
(1) within 3 days of the date the juvenile is taken into protective custody, excluding Saturday, Sunday and legal holidays, a protective custody hearing as provided in Rule 111.14; and
(2) within 60 days of the date the juvenile is taken into protective custody, an adjudication hearing; and
(3) within 90 days of the date the juvenile is taken into protective custody, a dispositional hearing.

c.  If the juvenile who is the subject of the petition or motion to modify is in the legal custody of the children's division, the following hearings shall be held:
(1) every 90 to 120 days after the dispositional hearing during the first twelve months in which the juvenile is in the custody of the children’s division, a dispositional review hearing regarding the reunification efforts made by the division;
(2) within 12 months of the date the juvenile is taken into protective custody and at least annually thereafter, a permanency hearing unless the court has previously determined that the children’s division is not required to make reasonable efforts to reunify the family.  If such determination was made, the permanency hearing shall be held within 30 days of such determination and at least annually thereafter; and
(3) as often as necessary after each permanency hearing but at least every 6 months during the period in which the juvenile remains in the children’s division’s custody, a post-permanency hearing.

d.  Upon conclusion of each hearing, the juvenile officer shall provide written notice to all parties of the date, time and place of the next scheduled hearing.  The court-appointed special advocate for the juvenile and the current foster parents, or any pre-adoptive parent or relative providing care for the juvenile, shall also be provided with such notice.  Mailed notice shall not be required for any party or other individual designated in this Rule 119.01 to whom notice of the next subsequent hearing was provided by court order upon conclusion of the immediately preceding hearing.

3.  It is ordered that the rules adopted by this order supercede any inconsistent provisions of Rules 110 to 129, inclusive.

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

___________________________
MICHAEL A. WOLFF
Acting Chief Justice