§4 ch2: Court Related Activities for Placement of Children
Attachment A: The Juvenile Court and Other Legal Considerations
Purpose and Mission of the Court
As designated by the Juvenile Code, the purpose of the juvenile court is to "facilitate the care, protection and discipline of children who come within the jurisdiction of the Juvenile Court." The Code also states that the law should be "liberally construed" which permits a great deal of discretionary power. Based on the law, the mission of the court is to ensure that "each child coming within the jurisdiction of the Juvenile Court shall receive such care, guidance and control, preferably in his own home, as will conduce to the child’s welfare and the best interests of the state..." (RSMo 211.011)
Jurisdiction of the Court
The juvenile court has exclusive jurisdiction over children under 17 years of age. In cases where a child has been determined to be abused or neglected, jurisdiction can be extended to children under 18 years of age.
Another exception may occur for a child between the ages of 14 and 17 who has committed an offense which would be considered a felony if committed by an adult. The child may then be certified as an adult and tried in the circuit court.
Once the juvenile court has asserted jurisdiction, the court may retain jurisdiction until the child has reached the age of twenty-one. Its authority over adults is limited to the following circumstances:
- The court may order parents to financially support their children in placement;
- The court may order physical, psychiatric, or psychological examinations of parents or guardians;
- Any person who interferes with a court order, or contributes to the delinquency of a child under the court’s jurisdiction may be held in contempt;
- The termination of parental rights; and
- Adoptions.
Any other punitive action against the parents or other custodian must be taken through the circuit court.
The Hearing Process
The first step in the hearing process, after the court is informed that a child appears to be under the jurisdiction of the court, is for the court to hold a preliminary inquiry to determine the facts and whether the interests of the public or of the child require further action. Based upon that inquiry the court may make an informal adjustment or authorize the juvenile officer to file a petition.
The types of hearings which the court may hold include:
- Detention or protective custody hearings- If the juvenile has been taken into detention, for a status offense, the Juvenile Office has twenty-four hours to get an order from the judge continuing the protective custody. The parent can request a protective custody hearing. If they do request a protective custody hearing, it must be held within 72 hours (excluding weekends and holidays) of the request, unless continued for good cause. These are held to determine if the court has grounds to hold the child until the adjudicatory hearing. The detention hearing must be held within 72 hours excluding Saturdays, Sundays, and legal holidays.
- Adjudication and dispositional hearings- Once the juvenile officer files a petition, the case enters the hearing phase. There are two phases of the initial hearing procedure. These two phases may be addressed consecutively in the same hearing or separately in two hearings.
The Adjudicatory phase is conducted to determine if the juvenile or his parents have committed acts alleged in the petition (juvenile; criminal offenses, status offenses-parents; abuse/neglect) which then allows the court to take jurisdiction over the child.
If the allegations are found to be true, the hearing enters phase two, the Dispositional phase. In the dispositional phase, the court decides the most appropriate means to address the problem. This may include commitment to a public or private agency, supervision, examination by a psychiatrist or psychologist, participation in counseling, or any number of other dispositions.
- Dispositional Review Hearing - This hearing should be held within 90 days of the Dispositional Hearing and may be held as often as needed to determine the appropriate permanency plan for the child.
- Permanency Hearing - These are judicial reviews held annually that are conducted to determine objectively the continuing appropriateness of a child’s placement, a child’s progress while in care toward the short and long range goals, and a child’s need for continued care.
- Permanency Review Hearing - This hearing may be held as often as is necessary, but must be held at least every 6 months following the permanency hearing. The purpose of this hearing is to determine if the permanency plan in place is the most appropriate option for the child and whether the Children’s Division has made reasonable efforts to finalize the plan.
- Termination of parental rights (TPR) hearings - This is a legal proceeding which considers the need to sever the legal ties of a child from his/her parents, adoptive parents, or guardian.
In other types of hearings, the Juvenile Code states that the law should be "liberally construed." This permits a great deal of discretionary power. However, appellate courts in Missouri have repeatedly stated that in an action for termination of parental rights the statutory requirements will be strictly and literally applied.
- Adoption hearings - This is a legal proceeding that considers a petition to adopt a child, determines the suitability of the prospective adoptive family, and grants temporary or final legal custody of a child for the purpose of adoption.
As with TPR proceedings, the adoption statutes will also be strictly construed in some circumstances during adoption proceedings.
- Special hearings - Other matters heard by the court upon a petition by the parent, guardian, legal custodian, spouse, relative or next friend.
Witnesses and Records
When the court receives a referral, at times the juvenile and/or parent will deny the report. When this occurs, a contested hearing is set and witnesses are subpoenaed. Witnesses may include school personnel, medical personnel, the police, Children’s Division (CD) staff, etc. In order to introduce evidence contained in the records of these witnesses, it must be done under the Uniform Business Records Act. This is an exception to the Hearsay Rule. In order to comply with the Act it is necessary that:
- The custodian testify to the identity and mode of preparation of the record;
- The custodian testify that it was made in the regular course of business at or near the time of the act; and
- Sources, method, and time for the preparation of the record justify admission at the discretion of the court.
These records may also be admissible without the testimony of the custodian if they are filed with the proper affidavit.
Supreme Court rule 123.08 requires the Children’s Division and the Juvenile Officer to provide access to records and information within specific time frames without a formal discovery request. Within ten (10) days of the protective custody hearing or within fourteen (14) days of the filing of the petition or motion to modify, the Children’s Division and Juvenile Officer must allow for certain records to be made available to all parties. The records may include the following and should be relevant to the allegations in the petition:
- Medical records of the juvenile;
- Law enforcement records, including incident reports. If information regarding an active investigation is requested, CD staff should request permission to release from law enforcement. If law enforcement will not approve the release due to an active investigation, CD should notify all parties that the information cannot be released at this time;
- Written statements, videotapes, and audiotapes regarding the juvenile and or parents/guardians;
- Reports and affidavits submitted by the Children’s Division to the juvenile office recommending protective custody or a petition to be filed;
- Completed CD reports and safety plans;
- Written service agreements; and
- Completed hotline reports, redacted as required by law. If the hotline report is not completed by the timeframes set forth in the initial court hearing, the report should be made available upon completion.
CD must also make available to all parties any new relevant information related to the allegations obtained within ten (10) days of receipt. This rule only requires CD to make available completed documents in their case record. The rule does not require CD to request additional records not currently in its possession for any other party.
Staff are not required to have a release of information form signed by the parents to release information related to the allegations pursuant to a request made under this rule as long as there is an order of appointment by the court or entry of appearance made by the attorney. However, a signed release of information form is required to release confidential materials regarding the parents’ protected health information or materials not covered in the rule.
The rule states that CD must make these materials available for all parties, thus staff should have their case files ready for review within the specified timeframes. The rule does not require CD to make copies of the information. Staff may schedule an appointment for the party to review the relevant information in the record. If the party or attorney would like copies of the documents, they may provide a written or verbal request. If copies of the information are requested, the Children’s Division must follow the timeframes established in this rule as this rule supersedes the CD policy which allows ten (10) days to prepare the case file. Only one copy per party will be made. Any additional copies will be made at the expense of the person requesting the copy.
The Expert Witness
CD staff may be required to testify in court, either to the facts of a case or in the role of an expert witness. Opinions and inferences of an expert witness are admissible when it has been established that the witness is professionally acquainted with, skilled, or trained in some field (i.e., child welfare, child custody) and therefore has knowledge or experience in matters generally not familiar to the public. For this reason, prior to testimony, CD staff may be asked to state their educational background, experience, etc. While CD staff may testify to matters which pertain to "the best interests of the child," they are generally not qualified to testify to matters beyond their scope of expertise such as medical opinions, mental condition/diagnosis of the parent, etc.
Legal Rights
Certain legal rights in terms of the integrity of the family have been established by the Supreme Court via the process of legislative review. In general, these rights have been incorporated into state statutes. Such rights include, but are not limited to:
- Constitutional Rights - Applied to both parents and children. Parents have the constitutional right to rear their children as they see fit provided the child’s general welfare is protected.
In 1967, the United States Supreme Court ruled that the Fourteenth Amendment to the United States Constitution and the Bill of Rights applied in juvenile cases where a minor could be committed to a state institution.
- Right to Counsel - The parent’s right to counsel may vary from state to state. However, in almost all instances, children have a right to counsel and/or a Guardian ad Litem. (Guardian ad Litem 'GAL': an adult individual appointed by a court to protect the best interests of a minor child in a specific legal action; may be, but is not necessarily, an attorney). In order to be appointed as a 'GAL' the individual must have completed a training program in permanency planning.
Under Missouri laws an indigent parent is entitled to have an attorney appointed in actions for termination of parental rights. In cases of child abuse or neglect, where the parent is a minor, mentally ill, or incompetent, the parent is entitled to appointment of a 'GAL'.
- Right to an Impartial Hearing - Before children can be removed from a home, parents and children have the right to a hearing before an impartial judge.
- Right of family integrity - Before removal of a child, attempts should be made to strengthen and rehabilitate the family. (This is currently a Federal regulation as well; i.e., Efforts to Prevent Placement.) Therefore, courts will generally support a preference for the child to remain in the natural home. The courts may set conditions such as cooperation with CD, mandated counseling, etc.
- Right to challenge, correct and expunge Child Protection Agency Records - This encompasses the destruction of unsubstantiated CA/N reports on reports made prior to August 28, 1999 (RSMo 210.150 removed court expungement of unsubstantiated reports) the right to review CD records, and the right to challenge CD findings in court.
Rights of the Child and Family
Family law, within the context of protective services and custody, is based upon the English Common Laws principle of "Parens Patriae." Under the doctrine of "parens patriae," a court of equity exercising the Crown’s paternal prerogative, could declare a child a ward of the Crown when the parents had failed to maintain the child’s welfare.
Modern legal interpretation focuses on the sanctity of the family. The court is empowered to protect "the best interests of the child." In this context, the court will place substantial weight on the following considerations:
- Love, affection, and emotional ties existing between parent and child;
- Presumption that natural parents have an inherent capacity and interest to best provide love, affection, and guidance, and the right to make educational, medical, disciplinary, and religious choices for the child;
- Length of time the child has resided with the parents and desirability of maintaining continuity; and
- Financial resources of parents are of secondary importance, provided basic necessities can be met with or without the assistance of outside resources.
Parental Responsibilities
The integrity of the family is protected by both legal and ethical rights. Parents have responsibilities as well as rights. When the welfare of the child is endangered, the state assumes the right to intervene. Children have a need for love, care, and protection. Within their ability and available resources, parents have a responsibility to provide:
- Food, shelter, clothing;
- Medical care;
- Educational opportunities;
- Supervision; and
- Moral and social guidance.
Invasion of Privacy
The state’s obligation to protect children from harm is balanced by the family’s right to privacy. This obligation is predicated on the assumption that investigations are conducted under certain general guidelines:
- Efforts in gathering information should be made in a reasonable manner;
- There is no malicious intent involved;
- Only necessary information is gathered;
- The least intrusive means of acquiring information is preferred; and
- The public interest is served (i.e., state’s obligation to protect children).
Standards for Child Protection Services
The following guidelines should be encompassed in providing services to families served by CD. In the course of service delivery, such guidelines will serve the CD Children’s Service Worker well in respecting the integrity of the family, maintaining a professional demeanor, and assisting the family to provide for the best interests of the child:
- Responsiveness to reports of suspected child abuse and neglect;
- Fair and competent assessment of the family’s willingness and ability to protect a child;
- Reliance on the family’s strengths and resources in casework planning;
- Direct and intensive efforts to enhance those strengths and to introduce families to appropriate resources;
- Recognition and assessment of personal feelings in the context of providing services. (The Children’s Service Worker should seek supervisory assistance in dealing with common feelings that may interfere with effective service delivery such as anger, fear, anxiety, ambivalence, bias, prejudice, etc.);
- Ongoing assessment of the presence and level of risk to all children in the family; and
- Prompt follow-up (i.e., court referral) when the above efforts are unproductive and there is a clear danger to the child.
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Acknowledgment: Raymond Legg, Attorney, Missouri Division of Legal Services, reviewed this chapter and supplied information.
Sources:
Professional Liability: Schwitzgebel, Robert L. and Schwitzgebel, R. Kirkland; Law and Psychological Practice; New York: John Wiley and Sons, Inc., 1980
Child Welfare League of America, Standards For Child Protective Services, New York, New York: 1980
National Committee for Prevention of Child Abuse, Child Abuse and the Law: A Legal Primer for Social Workers, New York, New York: 1980
Schwitzgebel, Robert L. and Schwitzgebel R. Kirkland, Law and Psychological Practice. New York: John Wiley and Sons, Inc., 1980