CHILD WELFARE MANUAL

Section 4, Chapter 3 (Court)

Effective Date:  5-1-2019

 

Court Related Activities

Children’s Service Workers may be expected to prepare reports and/or testify at a variety of court hearings in both family/juvenile court and civil courts. These hearings may include adjudication, dispositional, permanency reviews, adoptions, dissolution of marriage and criminal matters. Guidelines for preparing for court, preparing the family for court, preparing court reports, and testifying in court are provided below.

The Children’s Service Worker shall prepare and submit a report for the court that includes a description of the facts pertaining to the case. The specific requirements may vary in each circuit.

The court process may place the Children’s Service Worker in an adversarial position or may be an opportunity to advocate for the family. The worker is expected to work with the family to improve the family’s ability to provide a safe environment for the child. The following guidelines will assist the worker in preparing the family for court:

  • Review with the family and the child, if age appropriate, the safety concerns involved in the situation
  • Review with the family their progress in achieving the treatment plan
  • Review their legal rights, referring them to an attorney if needed
  • Describe the agency’s role in the court hearing
  • Assist the family (including the child and other family members) in dealing with their feelings about the court action
  • Explain the possible outcomes of the court hearing
  • Prepare the child for what to expect if he/she is to testify. Explain that the child should answer truthfully and answer only those questions to which he/she knows the answer. Assure the child that he/she is not to blame for the necessity of the hearing. Explain that the judge is there to make a determination as to what is best for the child.The Children’s Service Worker should contact the attorney (or juvenile officer acting in this role) who represents the court’s interests if he/she is not contacted prior to the hearing. The following questions and concepts may be important for a clear understanding of how to testify and what to expect at the court hearing:

Sometimes it is helpful to show the child the inside of the courtroom before the hearing to orient him/her to the surroundings such as where participants will be sitting. Role-playing may also be helpful to the child.

The Children’s Service Worker should contact the attorney (or juvenile officer acting in this role) who represents the court’s interests if he/she is not contacted prior to the hearing. The following questions and concepts may be important for a clear understanding of how to testify and what to expect at the court hearing:

  • What type of hearing is scheduled? (i.e. adjudication, disposition, permanency, review, adoption, guardianship)
  • Court setting – how formal or informal is the court?
  • Will there be testimony? What are the qualifications needed and what are the topics?
  • What is the Guardian Ad Litem (GAL)’s position/role?
  • Does the court want the case file brought to the hearing?
  • How is evidence submitted and reviewed?

In any judicial proceeding involving the custody of a child, the fact that a child abuse and neglect report may have been made pursuant to Sections 210.110 to 210.165, RSMo. shall not be admissible. However, this shall prohibit the introduction of evidence from independent sources to support the allegations that may have caused a report to have been made (Section 210.145, RSMo).

These guidelines are provided to assist the Children’s Service Worker during the hearing:Dress appropriately and professionally. How you present yourself to the court impacts on your credibility

  • Listen carefully to the attorney’s questions
  • Be as specific as possible with answers to the attorney’s questions
  • If you don’t understand a question, you did not hear it, or you do not know the answer, say so. Ask that the question be repeated or rephrased if necessary
  • On cross-examination remember two things:
    • Always answer only what you are asked by the opposing attorney. Do not volunteer information. It is the opposing attorney’s job to ask the questions and get the answers he/she feels will benefit his/her position. If you want to explain an answer, ask if you may explain. If the opposing attorney says no, you have at least alerted your own attorney to request an explanation or redirect
    • Always pause for a few seconds to give your attorney time to object to the question if he/she desires. If you provide an answer which is detrimental to your case and an objection could have been made, the court may allow the answer to be stricken; however everyone will have heard it. If you are asked a question by the opposing attorney and your attorney objects, do not say anything until the judge has ruled. Sometimes the attorneys will both present explanations for their positions. The judge will either sustain the objection, which means you do not have to answer the question, or the judge will overrule the objection, which means you do have to answer

Juvenile Court Information

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…”

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.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 the parent to participate in services
  • 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
  • Adoption

The Hearing Process 

A series of hearings will be held by the court. The types of hearings which the court may hold include:

Protective Custody Hearings- These are held to determine if the court has grounds to hold the child until the adjudicatory hearing. The hearing must be held within 72 hours excluding Saturdays, Sundays, and legal holidays.

Adjudication and Dispositional Hearings- These two hearings may be addressed consecutively in the same hearing or separately in two hearings.  The Adjudicatory hearing is conducted to determine if the juvenile or his parents have committed acts alleged in the petition 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.

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 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. This includes hearings for which a guardianship could be ordered.

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 testifies to the identity and mode of preparation of the record;
  • The custodian testifies 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 Office 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
  • 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 regarding these timeframes. 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.
  • Right to Counsel –   In almost all instances, children have a right to counsel and/or a Guardian ad Litem. A Guardian ad Litem (GAL) is an adult individual appointed by a court to protect the best interests of a minor child in a specific legal action and 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, except in emergency situations.
  • Right of Family Integrity – Before removal of a child, attempts should be made to strengthen and rehabilitate the family. Therefore, courts will generally support a preference for the child to remain in the natural home.
  • 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 (Section 210.150, RSMo. 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

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
  • 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. Within their ability and available resources, parents have a responsibility to provide:

  • Food, shelter, clothing
  • Medical care
  • Educational opportunities
  • Supervision
  • Moral and social guidance.