Motion To Dismiss – CPS – Missouri

How to write a Motion To Dismiss for CPS Juvenile Court In Missouri

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In order to write a Motion To Dismiss, you must first understand the rules of the court, the laws of the land. Go over the parts below that pertain to your situation and write those law numbers down. You will be needing them later in our course.

Child Witnesses to Domestic Violence

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Current Through April 2016

Circumstances That Constitute Witnessing

This issue is not addressed in the statutes reviewed.

Consequences

This issue is not addressed in the statutes reviewed.

Definitions of Child Abuse and Neglect

To better understand this issue and to view it across States, download the PDF (587 KB) of this publication.

Current Through February 2016

Physical Abuse

‘Abuse’ means any physical injury inflicted on a child by other than accidental means by those responsible for the child’s care, custody, and control.

Neglect

‘Neglect’ means failure to provide, by those responsible for the care, custody, and control of the child, proper or necessary support; education as required by law; nutrition; or medical, surgical, or any other care necessary for the child’s well-being.

Sexual Abuse/Exploitation

The term ‘abuse’ includes sexual abuse.

Emotional Abuse

The term ‘abuse’ includes emotional abuse inflicted on a child by those responsible for the child’s care, custody, and control.

Abandonment

This issue is not addressed in the statutes reviewed.

Standards for Reporting

Citation: Ann. Stat. § 210.115
A report is required when a mandatory reporter has reasonable cause to suspect that a child has been or may be subjected to abuse or neglect or observes a child being subjected to conditions or circumstances that would reasonably result in abuse or neglect.

Persons Responsible for the Child

The term ‘those responsible for the care, custody, and control of the child’ includes, but is not limited to:

  • The parents or guardian of a child
  • Other members of the child’s household
  • Anyone exercising supervision over a child for any part of a 24-hour day
  • Any adult who has access to the child, based on a relationship to the parents of the child, members of the child’s household, or the family
Exceptions

Discipline, including spanking, administered in a reasonable manner, shall not be considered abuse.

A child who does not receive specified medical treatment by reason of the legitimate practice of the religious belief of the child’s parents, guardian, or others legally responsible for the child shall not be found to be an abused or neglected child for that reason alone.

The division may accept reports concerning such a child and may subsequently investigate or conduct a family assessment as a result of that report. This exception shall not limit the administrative or judicial authority of the State to ensure that medical services are provided to the child when the child’s health requires it.

Definitions of Domestic Violence

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Current Through August 2013

Defined in Domestic Violence Civil Laws

‘Abuse’ includes, but is not limited to, the occurrence of any of the following acts, attempts, or threats against a person who may be protected pursuant to this chapter:

  • ‘Assault,’ which means purposely or knowingly placing or attempting to place another in fear of physical harm
  • ‘Battery,’ which means purposely or knowingly causing physical harm to another with or without a deadly weapon
  • ‘Coercion,’ which means compelling another by force or threat of force to engage in conduct from which the latter has a right to abstain or to abstain from conduct in which the person has a right to engage
  • ‘Harassment,’ which means engaging in a purposeful or knowing course of conduct involving more than one incident that alarms or causes distress to an adult or child, serves no legitimate purpose, and causes a reasonable adult or child to suffer substantial emotional distress, including, but not limited to:
    • Following another about in a public place or places
    • Peering in the window or lingering outside the residence of another; but does not include constitutionally protected activity
  • ‘Sexual assault,’ which means causing or attempting to cause another to engage involuntarily in any sexual act by force, threat of force, or duress
  • ‘Unlawful imprisonment,’ which means holding, confining, detaining, or abducting another person against that person’s will
  • ‘Domestic violence,’ which means abuse or stalking committed by a family or household member, as such terms are defined in this section

‘Stalking’ is when any person purposely and repeatedly engages in an unwanted course of conduct that causes alarm to another person when it is reasonable in that person’s situation to have been alarmed by the conduct.

Defined in Child Abuse Reporting and Child Protection Laws

This issue is not addressed in the statutes reviewed.

Defined in Criminal Laws

A person commits the crime of ‘domestic assault in the first degree’ if he or she attempts to kill or knowingly causes or attempts to cause serious physical injury to a family or household member, including any child who is a member of the family or household, as defined in § 455.010.

A person commits the crime of ‘domestic assault in the second degree’ if the act involves a family or household member, including any child who is a member of the family or household, as defined in § 455.010, and he or she:

  • Attempts to cause or knowingly causes physical injury to such person by any means, including, but not limited to, by use of a deadly weapon or dangerous instrument, or by choking or strangulation
  • Recklessly causes serious physical injury to such person
  • Recklessly causes physical injury to such person by means of any deadly weapon

A person commits the crime of ‘domestic assault in the third degree’ if the act involves a family or household member, including any child who is a member of the family or household, as defined in § 455.010, and:

  • The person attempts to cause or recklessly causes physical injury to such person.
  • With criminal negligence, the person causes physical injury by means of a deadly weapon or dangerous instrument.
  • The person purposely places the other person in apprehension of immediate physical injury by any means.
  • The person recklessly engages in conduct that creates a grave risk of death or serious physical injury.
  • The person knowingly causes physical contact with the family or household member knowing the other person will regard the contact as offensive.
  • The person knowingly attempts to cause or causes the isolation of the other person by unreasonably and substantially restricting or limiting his or her access to other persons, telecommunication devices, or transportation for the purpose of isolation.
Persons Included in the Definition

In civil law: ‘Family’ or ‘household member’ means spouses, former spouses, any person related by blood or marriage, persons who are presently residing together or have resided together in the past, any person who is or has been in a continuing social relationship of a romantic or intimate nature with the victim, and anyone who has a child in common regardless of whether they have been married or have resided together at any time.

In criminal law: ‘Family’ or ‘household member’ means spouses, former spouses, adults related by blood or marriage, adults who are presently residing together or have resided together in the past, and adults who have a child in common regardless of whether they have been married or have resided together at any time.

Immunity for Reporters of Child Abuse and Neglect

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Current Through March 2015

Any person, official, or institution complying with the provisions of the reporting laws in making a report; taking color photographs and/or making radiologic examinations; removing or retaining a child pursuant to statute; or cooperating with the division or any other law enforcement agency, juvenile office, court, or child protective service agency of this or any other State; in any activities pursuant to statute or any other allegation of child abuse, neglect, or assault shall have immunity from any liability, civil or criminal, that otherwise might result by reason of such actions.

However, any person, official, or institution intentionally filing a false report, or acting in bad faith or with ill intent, shall not have immunity from any liability, civil or criminal. Any such person, official, or institution shall have the same immunity with respect to participation in any judicial proceeding resulting from the report.

Any person who is not a school district employee who makes a report of child abuse by a school employee to any employee of the school district shall have immunity from any liability, civil or criminal, that otherwise might result because of such report. Any such person who makes a false report while knowing that the report is false, or who acts in bad faith or with ill intent in making such report, shall not have immunity from any liability, civil or criminal. Any such person shall have the same immunity with respect to participation in any judicial proceeding resulting from the report.

Making and Screening Reports of Child Abuse and Neglect

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Current Through February 2013

Individual Responsibility to Report

When a mandated reporter has reasonable cause to suspect that a child has been or may be subjected to abuse or neglect, that person shall immediately cause an oral report to be made to the Children’s Division of the Department of Social Services.

Content of Reports

Reports shall contain the following information:

  • The names and addresses of the child, the child’s parents, or other persons responsible for the child’s care
  • The child’s age, sex, and race
  • The nature and extent of the child’s injuries, abuse, or neglect, including any evidence of previous injuries, abuse, or neglect to the child or the child’s siblings
  • The name, age, and address of the person responsible for the child’s injuries, if known
  • Family composition
  • The source of the report
  • The name, address, occupation, and contact information of the reporter
  • Actions taken by the reporter
  • Any other information that might be helpful
Reporting Suspicious Deaths

Any mandated reporter who has probable cause to suspect that a child has died as a result of abuse or neglect shall report that fact to the medical examiner or coroner.

Reporting Substance-Exposed Infants

Any physician or health-care provider may refer to the Department of Health and Senior Services families in which children may have been exposed to a controlled substance or alcohol, as evidenced by:

  • Medical documentation of signs and symptoms consistent with controlled substances or alcohol exposure at birth
  • Results of a confirmed toxicology test performed on the mother or the child at the child’s birth
  • A written assessment made by a physician, health-care provider, or the Division of Family Services that documents the child as being at risk of abuse or neglect

Nothing in this section shall preclude a physician or other mandated reporter from reporting abuse or neglect of a child as required by the provisions of § 210.115.

Agency Receiving the Reports

Reports shall be made to the Children’s Division of the Department of Social Services.

Initial Screening Decisions

The division shall utilize structured decision-making protocols for classification purposes of all child abuse and neglect reports. The protocols developed by the division shall give priority to ensuring the well-being and safety of the child. All child abuse and neglect reports shall be initiated within 24 hours and shall be classified based upon the reported risk and injury to the child.

In regulation: All reports received by the hotline shall be screened within 24 hours of receipt and shall be classified based upon the reported safety risk and injury to the child. In all cases, the division must have face-to-face contact with all children in the alleged victim’s household within 72 hours.

If the call is screened in, it will be accepted as a child abuse/neglect report and sent to the county office. If the call is screened out, the call will be documented and entered into the database, but no further action will be taken unless the division decides to refer it for appropriate community service. After response assignment, the report is sent to the local division office for review. The local division office has the option to change the response assignment, given additional information or prior history with the family. Each investigation will be classified as a 3-hour, 24-hour, or 72-hour call, based upon information received by the hotline.

Agency Conducting the Assessment/Investigation

The local office shall contact the appropriate law enforcement agency immediately upon receipt of a report that division personnel determine merits an investigation and provide such agency with a detailed description of the report received. In such cases, the local division office shall request the assistance of the local law enforcement agency in all aspects of the investigation.

The local office of the division shall cause an investigation or family assessment and services approach to be initiated in accordance with established protocols.

Multidisciplinary teams shall be used whenever conducting the investigation in conjunction with local law enforcement. Multidisciplinary teams shall be used in providing protective or preventive social services, including the services of law enforcement, a liaison of the local public school, the juvenile officer, the juvenile court, and other agencies, both public and private.

Assessment/Investigation Procedures

The investigation shall include, but not be limited to:

  • The nature, extent, and cause of the abuse or neglect
  • The identity and age of the person responsible for the abuse or neglect
  • The names and conditions of other children in the home, if any
  • The home environment and the relationship of the subject child to the parents or other persons responsible for the child’s care
  • Any indication of incidents of physical violence against any other household or family member
  • Other pertinent data

When a report has been made by a mandated reporter, the division shall contact that person within 48 hours of the receipt of the report in order to ensure that full information has been received and to obtain any additional information or medical records, or both, that may be pertinent.

If the appropriate local division personnel determine after an investigation has begun that completing an investigation is not appropriate, the division shall conduct a family assessment. For the family assessment, the division shall:

  • Assess any service needs of the family
  • Provide services that are voluntary and time-limited unless it is determined by the division based on the assessment of risk that there will be a high risk of abuse or neglect if the family refuses to accept the services
  • Commence an immediate investigation if at any time during the family assessment the division determines that an investigation is required
Timeframes for Completing Investigations

If the report indicates that educational neglect is the only complaint and there is no suspicion of other neglect or abuse, the investigation shall be initiated within 72 hours of receipt of the report. If the report indicates the child is in danger of serious physical harm or threat to life, an investigation shall include direct observation of the subject child within 24 hours.

The division shall complete all investigations within 30 days unless good cause for the failure to complete the investigation is documented in the information system. If a child involved in a pending investigation dies, the investigation shall remain open until the division’s investigation surrounding the death is completed.

Classification of Reports

The results of the investigation shall be classified as either of the following:

  • That the division has determined by a probable cause finding prior to August 28, 2004, or by a preponderance of the evidence after August 28, 2004, that abuse or neglect exists
  • That the division has not made a probable cause finding or determined by a preponderance of the evidence that abuse or neglect exists

Parental Drug Use as Child Abuse

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Current Through April 2015

Effective until January 1, 2017: A person commits the crime of endangering the welfare of a child in the first degree if:

  • The person knowingly acts in a manner that creates a substantial risk to the life, body, or health of a child younger than age 17.
  • Such person enlists the aid, either through payment or coercion, of a person younger than age 17 to unlawfully manufacture, compound, produce, prepare, sell, transport, test, or analyze amphetamine or methamphetamine or any of their analogues, or to obtain any material used to manufacture, compound, produce, prepare, test, or analyze amphetamine or methamphetamine or any of their analogues.
  • Such person, in the presence of a person younger than age 17 or in a residence where a person younger than age 17 resides, unlawfully manufactures, or attempts to manufacture, compounds, possesses, produces, prepares, sells, transports, tests, or analyzes amphetamine or methamphetamine or any of their analogues.

Endangering the welfare of a child in the first degree is a Class C felony unless the offense is committed as part of a ritual or ceremony, or except on a second or subsequent offense, in which case the crime is a Class B felony.

This section shall be known as ‘Hope’s Law.’

Notwithstanding the physician-patient privilege, any physician or health-care provider may refer to the Department of Health families in which children may have been exposed to alcohol or a controlled substance as defined by law as evidenced by:

  • Medical documentation of signs and symptoms consistent with controlled substances or alcohol exposure in the child at birth
  • Results of a confirmed toxicology test for controlled substances performed at birth on the mother or the child
  • A written assessment made or approved by a physician, health-care provider, or the Division of Family Services that documents the child as being at risk of abuse or neglect

Nothing in this section shall preclude a physician or other mandated reporter from reporting abuse or neglect of a child as required pursuant to the provisions of the reporting laws.

Upon notification, the Department of Health and Senior Services shall offer service coordination services to the family. The department shall coordinate social services, health care, mental health services, and needed education and rehabilitation services. Service coordination services shall be initiated within 72 hours of notification. The Department of Health and Senior Services shall notify the Department of Social Services and the Department of Mental Health within 72 hours of initial notification.

Referral and associated documentation provided for in this section shall be confidential and shall not be used in any criminal prosecution.

Representation of Children in Child Abuse and Neglect Proceedings

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Current Through August 2014

Making The Appointment

In every case involving an abused or neglected child that results in a judicial proceeding, the judge shall appoint a guardian ad litem (GAL) to appear for and represent:

  • A child who is the subject of the proceedings
  • A parent who is a minor or who is a mentally ill person or otherwise incompetent, and whose child is the subject of the proceedings

The appointing judge shall require the GAL to faithfully discharge his or her duties, and should the GAL fail to do so, the court shall discharge the GAL and appoint another.

The judge, in making appointments pursuant to this section, shall give preference to persons who served as GAL for the child in an earlier proceeding, unless there is a reason on the record for not giving such preference.

The Use of Court-Appointed Special Advocates (CASAs)

The court may designate volunteer advocates, who may or may not be attorneys licensed to practice law, to assist in the performance of the GAL duties for the court. Nonattorney volunteer advocates shall not provide legal representation. The court shall have the authority to examine the general and criminal background of persons designated as volunteer advocates, including utilization of the family care safety registry, to ensure the safety and welfare of the children such persons are designated to represent. The volunteer advocate shall be provided with all reports relevant to the case made to or by any agency or person, shall have access to all records of such agencies or persons relating to the child or such child’s family members or placements of the child, and upon designation by the court to a case, shall be informed of and have the right to attend any and all family support team meetings involving the child.

Qualifications/Training

The appointing judge shall have the authority to examine the general and criminal background of persons appointed as GALs, including utilization of the family care safety registry, to ensure the safety and welfare of the children such persons are appointed to represent.

Any person appointed to perform GAL duties shall have completed a training program in permanency planning and shall advocate for timely court hearings whenever possible to attain permanency for a child as expeditiously as possible to reduce the effects that prolonged foster care may have on a child. A nonattorney volunteer advocate shall have access to a court-appointed attorney GAL if the circumstances of the particular case so require.

In court rules: When appointing a GAL for a child, the court shall only appoint a lawyer licensed by the Supreme Court who has completed the training required by court standards.

The court may designate a court-appointed special advocate volunteer to assist in the performance of the GAL duties for the court as provided by law.

Specific Duties

The GAL shall be provided with all reports relevant to the case made to or by any agency or person, shall have access to all records of such agencies or persons relating to the child or the child’s family members or placements of the child, and upon appointment by the court to a case, shall be informed of and have the right to attend any and all family support team meetings involving the child. Employees of the Children’s Division, officers of the court, and employees of any agency involved shall fully inform the GAL of all aspects of the case of which they have knowledge or belief.

The appointing judge shall require the GAL to faithfully discharge his or her duties, and upon failure to do so shall discharge the GAL and appoint another.

In court rules: A GAL shall be guided by the best interests of the child and shall exercise independent judgment on behalf of the child in all matters. The roles of a GAL and a lawyer for the child are different and must be clearly distinguished. A GAL is not the lawyer for the child and, therefore, advocates the best interests of the child rather than merely representing the child’s preferences.

How the Representative Is Compensated

The GAL may be awarded a reasonable fee to be set by the court. The court, in its discretion, may award fees as a judgment to be paid by any party to the proceedings or from public funds. However, no fees as a judgment shall be taxed against a party or parties that have not been found to have abused or neglected a child or children. Such an award of guardian fees shall constitute a final judgment in favor of the GAL.

A volunteer advocate shall receive no compensation from public funds. This shall not preclude reimbursement for reasonable expenses.

Case Planning for Families Involved With Child Welfare Agencies

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Current Through April 2014

When Case Plans Are Required

Contracts shall require that a case management plan consistent with all relevant Federal guidelines be developed for each child at the earliest time after the initial investigation, but in no event longer than 14 days after the initial investigation or referral for services by the division. The case management plan shall be presented to the court and be the foundation of service delivery to the child and family.

In regulation: Every child in the care and custody of, or receiving social services from, the Division of Family Service of the Department of Social Services shall have a case plan developed for the purpose of preventing removal of the child from the care of the parents, reuniting a child separated from parents, or securing a permanent placement for a child if it is determined the child cannot be reunited with his or her parents.

Every case plan must be developed within 30 days from the date that it has been determined a child should receive protective services or from the date that a judicial determination has been made that the child should be placed in the care and custody of the division. Thereafter, each case plan shall be reviewed and modified, as necessary, every 6 months. The purpose of the review is to determine the extent of compliance with the case plan and determine what changes, if any, should be made.

Who May Participate in the Case Planning Process

A family support team meeting [will be] convened by the division or children’s services provider on behalf of the family and/or child for the purpose of determining service and treatment needs, determining the need for placement, developing a plan for reunification or other permanency options, determining the appropriate placement of the child, evaluating case progress, and establishing and revising the case plan.

Contents of a Case Plan

The case management plan shall, at a minimum, include:

  • An outcome target based on the child and family situation achieving permanency or independent living, where appropriate
  • Services authorized and necessary to facilitate the outcome target
  • Timeframes in which services will be delivered
  • Necessary evaluations and reporting

In addition to any visits and assessments required under case management, services to be provided by a public or private children’s services provider under the specific case management plan may include family-centered services, foster and adoptive parent recruitment and retention, residential care, in-home services, foster care services, adoption services, relative care case services, planned permanent living services, and family reunification services. In all cases, an appropriate level of services shall be provided to the child and family after permanency is achieved to ensure a continued successful outcome.

In regulation: A case plan is a written document that describes social and child welfare services and activities to be provided by the division and other local community agencies for the purpose of achieving a permanent familial relationship for the child. This case plan shall include, at a minimum, the following information:

  • Identifying information about the child and his or her immediate and extended family
  • A description of the factors and conditions, including the psychological needs of the child, that caused the division to determine that protective or alternative care services were needed or a copy of the judicial determinations made regarding the child’s placement in the custody of the division
  • A description of what efforts were made to prevent removal from the custody of the parents, to reunify the family, or to achieve a permanent placement for the child
  • A statement of the intended plan for permanency for the child, which shall consist of one of the following:
    • Maintain the child with the parents
    • Reunite child with his or her family if a judicial determination has been made for the child to be removed from the custody of the parents and placed in an alternate care facility
    • Place the child for the purpose of adoption
    • For a child age 16 or older, maintain child in a long-term separation from his or her parents with an agreed-upon plan with the care provider
  • A description of how the plan is designed to maintain or reunite the child with his or her parent or achieve a permanent substitute placement for the child including:
    • A description of the social services to be provided and a description of the services needed to carry out any requirements of a judicial determination proceeding or order with a designation of the responsible parties for the provision of any services
    • A description of the responsibilities of the parents
    • A description of parental behaviors that determine that services are no longer necessary or that alternative care is no longer needed
  • A description of the appropriateness and necessity for placement away from the parents if the court has ordered placement, including at a minimum, the following:
    • The least restrictive characteristics of the alternate care placement facility correlated to the condition and best interests of the child
    • The degree of proximity of the alternate care placement facility to the location of the parents’ residence
    • A description of how the needs of the child will be met while in placement
    • A parental visitation schedule including frequency, location, arrangements, and a method of documentation for actual visits
  • An evaluation of case plan achievement by all parties, including a time period for case plan achievement

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Court Hearings for the Permanent Placement of Children

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Current Through January 2016

Schedule of Hearings

A dispositional hearing to review the status of the child shall be held within 6 months.

A permanency hearing shall be held within 12 months of the initial placement and at least annually thereafter.

If the court determines that reasonable efforts to reunify the child with his or her family are not required, a permanency hearing must be held within 30 days after the determination.

Persons Entitled to Attend Hearings

The child and the child’s parent, guardian, or relative may be present at the hearing.

Any person who has provided foster care to a child at any time in a 2-year period prior to any hearing concerning the child shall be allowed to testify at such hearing. The court may limit such testimony to evidence the court finds relevant and material.

Determinations Made at Hearings

The purpose of the dispositional hearing shall be to determine whether or not the child should remain in foster care; whether the child should be returned to a parent, guardian, or relative; or whether or not proceedings should be instituted to terminate parental rights and legally free the child for adoption.

The permanency hearing shall be for the purpose of determining, in accordance with the best interests of the child, a plan for the permanent placement of the child.

At the permanency hearing, the court shall consider all relevant factors including:

  • The interaction and interrelationship of the child with the child’s foster parents, parents, siblings, and any other person who may significantly affect the child’s best interests
  • The child’s adjustment to his or her foster home, school, and community
  • The mental and physical health of all individuals involved, including any history of abuse of any individuals involved
  • The needs of the child for a continuing relationship with the child’s parents and the ability and willingness of parents to actively perform their functions as mother and father for the needs of the child
Permanency Options

Placement options for the child include:

  • Return to the parent, guardian, or relative
  • Termination of parental rights and placement for adoption
  • Continuation in foster care

Determining the Best Interests of the Child

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Current Through March 2016

The Department of Social Services shall address the needs of homeless, dependent, and neglected children in the supervision and custody of the Children’s Division and to their families-in-conflict by:

  • Serving children and families as a unit in the least restrictive setting available and in close proximity to the family home, consistent with the best interests and special needs of the child
  • Ensuring that appropriate social services are provided to the family unit both prior to the removal of the child from the home and after family reunification
  • Developing and implementing preventive and early intervention social services that have demonstrated the ability to delay or reduce the need for out-of-home placements and ameliorate problems before they become chronic

The provisions of this section shall be construed to promote the best interests and welfare of the child as determined by the juvenile court in consideration of the following:

  • The recognition and protection of the constitutional rights of all parties in the proceedings
  • The recognition and protection of the birth family relationship, when possible and appropriate
  • The entitlement of every child to a permanent and stable home

Grounds for Involuntary Termination of Parental Rights

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Current Through January 2013

Circumstances That Are Grounds for Termination of Parental Rights

A petition to terminate parental rights shall be filed when:

  • The child has been in foster care for at least 15 of the most recent 22 months.
  • A court has determined the child to be an abandoned infant.
  • The parent has:
    • Committed murder or voluntary manslaughter of another child of the parent
    • Aided or abetted, attempted, conspired, or solicited to commit such a murder or voluntary manslaughter
    • Committed a felony assault that resulted in serious bodily injury to the child or to another child of the parent
  • The child has been abandoned.
  • The parent has abused or neglected the child, based on any of the following:
    • A mental condition or chemical dependency that renders the parent unable to care for the child
    • Chemical dependency that prevents the parent from consistently providing the necessary care, custody, and control of the child and that cannot be treated so as to enable the parent to consistently provide such care, custody, and control
    • A severe act or recurrent acts of physical, emotional, or sexual abuse toward the child or any child in the family, including an act of incest
    • Repeated or continuous failure by the parent, although physically or financially able, to provide the child with adequate food, clothing, shelter, or education
  • The child has been in out-of-home care for 1 year, and the parent has failed to comply with the terms of a case plan designed to reunify the parent with the child.
  • The parent has been found guilty of a sexual offense or incest, and the victim was the child or any child in the family.
  • The child was conceived and born as a result of an act of forcible rape by a biological parent.
  • The parent is unfit because of a consistent pattern of committing a specific abuse, including, but not limited to, domestic abuse, child abuse, or drug abuse before the child.
  • The parent’s parental rights to one or more other children were involuntarily terminated within the immediately preceding 3 years.
Circumstances That Are Exceptions to Termination of Parental Rights

Even when grounds exist for termination of parental rights, the juvenile officer or the Children’s Division is not required to file a petition to terminate the parental rights of the child’s parent or parents if:

  • The child is being cared for by a relative.
  • There exists a compelling reason for determining that filing such a petition would not be in the best interests of the child, as documented in the permanency plan.
  • The family of the child has not been provided the services required for making reasonable efforts to preserve the family.

The disability or disease of a parent shall not constitute a basis for a determination that a child is a child in need of care, for the removal of custody of a child from the parent, or for the termination of parental rights without a specific showing that there is a causal relation between the disability or disease and harm to the child.

Circumstances Allowing Reinstatement of Parental Rights

This issue is not addressed in the statutes reviewed.

Infant Safe Haven Laws

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Current Through February 2013

Infant’s Age

A child who is no more than 1 year old may be relinquished.

Who May Relinquish the Infant

The child may be relinquished by his or her biological parent.

Who May Receive the Infant

The child may be released to the physical custody of any of the following persons:

  • An employee, agent, or member of the staff of any hospital, in a health-care provider position, or on duty in a nonmedical paid or volunteer position
  • A firefighter or emergency medical technician on duty in a paid position or on duty in a volunteer position
  • A law enforcement officer
Responsibilities of the Safe Haven Provider

A safe haven provider shall, without a court order, take physical custody of a child the person reasonably believes to be no more than age 1 and is delivered in accordance with this section by a person purporting to be the child’s parent. If delivery of a newborn is made in any place other than a hospital, the person taking physical custody of the child shall arrange for the immediate transportation of the child to the nearest hospital.

The hospital shall perform treatment in accordance with the prevailing standard of care as necessary to protect the physical health or safety of the child.

The hospital shall notify the Division of Family Services and the local juvenile officer upon receipt of a child. The local juvenile officer shall immediately begin protective custody proceedings and request the child be made a ward of the court during the child’s stay in the medical facility. Upon discharge of the child from the medical facility and pursuant to a protective custody order ordering custody of the child to the division, the Division of Family Services shall take physical custody of the child.

When a nonrelinquishing parent inquires at a hospital regarding the child, such facility shall refer the nonrelinquishing parent to the Division of Family Services and the juvenile court exercising jurisdiction over the child.

Immunity for the Provider

A safe haven provider shall be immune from civil, criminal, and administrative liability for accepting physical custody of a child pursuant to this section if such persons accept custody in good faith. Such immunity shall not extend to any acts or omissions, including negligent or intentional acts or omissions, occurring after the acceptance of such child.

Protection for Relinquishing Parent

A parent shall not be prosecuted for child abandonment or endangering the welfare of a child for actions related to the voluntary relinquishment of a child up to 5 days old. It shall be an affirmative defense to prosecution for child abandonment or endangering the welfare of a child that a parent who is a defendant voluntarily relinquished a child no more than age 1 if:

  • Expressing intent not to return for the child, the parent voluntarily delivered the child safely to the physical custody of any safe haven provider.
  • The child was no more than age 1 when delivered by the parent to a safe haven provider.
  • The child had not been abused or neglected by the parent prior to such voluntary delivery.
Effect on Parental Rights

The parent’s voluntary delivery of the child in accordance with this section shall constitute the parent’s implied consent to any such act and a voluntary relinquishment of such parent’s parental rights.

In any termination of parental rights proceeding initiated after the relinquishment of a child, the juvenile officer shall make public notice that a child has been relinquished, including the sex of the child, and the date and location of such relinquishment. Within 30 days of such public notice, the nonrelinquishing parent wishing to establish parental rights shall identify him or herself to the court and state his or her intentions regarding the child.

The court shall initiate proceedings to establish paternity, or if no person identifies himself as the father within 30 days, maternity. The juvenile officer shall make examination of the putative father registry to determine whether attempts have previously been made to preserve parental rights to the child. If such attempts have been made, the juvenile officer shall make reasonable efforts to provide notice of the abandonment of the child to such putative father.

If a parent of a child has relinquished custody of the child to a safe haven provider, the nonrelinquishing parent shall take such steps necessary to establish parentage within 30 days after notice has been provided. If a nonrelinquishing parent fails to establish parentage within the 30-day period, the nonrelinquishing parent may have all of his or her rights terminated with respect to the child.

Kinship Guardianship as a Permanency Option

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Current Through December 2014

Definitions

The term ‘close nonrelated person’ means any nonrelated person whose life is so intermingled with the child that the relationship is similar to a family relationship. The term ‘relative’ means any grandparent, aunt, uncle, adult sibling, adult first cousin of the child, or any other person related to the child by blood or affinity.

The term ‘legal custody’ means the right to the care, custody, and control of a child and the duty to provide food, clothing, shelter, ordinary medical care, education, treatment, and discipline of a child. Legal custody may be taken from a parent only by court action and if the legal custody is taken from a parent without termination of parental rights, the parent’s duty to provide support continues even though the person having legal custody may provide the necessities of daily living.

In regulation: The term ‘relative’ means a person related to another by blood, adoption, or affinity within the third degree (grandparent, brother, sister, half-brother, half-sister, stepparent, stepbrother, stepsister, uncle, aunt, or first cousin).

The term ‘kinship’ applies to a person not related by blood, marriage, or adoption who has a close relationship with the child or child’s family (godparents, neighbors, teachers, close family friends, and fellow church members) or a person who has a close relationship with the child or child’s family and is related to the child by blood or affinity beyond the third degree.

Purpose of Guardianship

Guardianship is a permanency option for children in out-of-home care when neither family reunification nor adoption is feasible or desirable, and the caregiver family is willing to assume a greater level of responsibility and authority over the child.

A Guardian’s Rights and Responsibilities

The guardian becomes legally responsible and obligated to take care of the child. The guardian must make all necessary decisions regarding the child’s affairs, including medical care, education, and finances. Also, the guardian is under a duty to provide the child with necessary food, clothing, and shelter. The guardian is directly supervised by and answerable to the court that granted the petitioner’s request for guardianship.

Qualifying the Guardian

A prospective guardian shall not be approved if he or she:

  • Has a felony conviction for child abuse or neglect, spousal abuse, a crime against children (including child pornography), or a crime involving violence, including rape, sexual assault, or homicide, but not including other physical assault or battery
  • Has had a felony conviction for physical assault, battery, or a drug-related offense in the past 5 years

In policy: The Department of Social Services will pursue guardianship when:

  • Family reunification is not likely in the foreseeable future and termination of parental rights is deemed inappropriate.
  • Adoption is not an option.
  • The current caregiver is able to meet the needs of the child, including financial, and is willing to pursue guardianship.
  • The current placement is stable.
  • The child’s parent(s) will consent to guardianship.
  • The child, if over age 14, consents.
  • The juvenile court having jurisdiction supports guardianship as an option and is willing to terminate its jurisdiction when guardianship is granted.

The caregiver family must comply with all licensing requirements, including training, background checks, and the home study process.

Procedures for Establishing Guardianship

If, after the dispositional hearing, the court finds that one or more of the grounds set out for termination of parental rights exists, but that termination is not in the best interests of the child because the court finds that the child would benefit from the continued parent-child relationship or because the child who is age 14 or older objects to the termination, the court may appoint a guardian under the provisions of chapter 475.

In policy: Persons interested in serving as a child’s guardian must file a petition in probate court in accordance with chapter 475. If the court makes a determination that the child is a minor incapable of caring for him- or herself and unable to manage his or her affairs, a guardian is appointed.

Contents of a Guardianship Order

This issue is not addressed in the statutes and regulations reviewed.

Modification/Revocation of Guardianship

This issue is not addressed in the statutes and regulations reviewed.

Eligibility for Guardianship Subsidy

Any subsidies available to adoptive parents also shall be available to a qualified relative of a child or a qualified close nonrelated person who is granted legal guardianship of the child.

In regulation: In order for a child to qualify for a guardianship subsidy, the child shall meet the following criteria:

  • The child must be under age 18 at the time of placement.
  • The child must be in the custody of the department or a child-placing agency.
  • The child cannot or should not be returned to the home of his or her parents.
  • The child must be a ‘child with special needs,’ as defined below, that precludes placement with a guardian without providing subsidy.

To be eligible for a subsidy, a child shall meet one or more of the following conditions:

  • Any physical condition, whether congenital or not, that requires treatment or the purchase of special equipment or services
  • Intellectual impairment or dysfunction
  • Racial or ethnic minority
  • Be age 5 or older and younger than 18, or younger than 21 if the child’s condition requires extraordinary treatment or rehabilitative services
  • Two or more children who are siblings and being placed with the same family
  • A developmental disability that prevents the child from functioning at the normal level for his or her age
  • A mental or emotional disturbance that impairs the child’s mental functioning
  • A severe behavioral condition or inadequate social development that interferes with the child’s ability to form satisfactory relationships
  • A history of circumstances such as long-term out-of-home care, incest, or a social or genetic complication in the family background, that can impede an adoption

In order for a guardian to be eligible for subsidy, he or she shall be a grandparent or great-grandparent, aunt or great-aunt, uncle or great-uncle, adult sibling, or adult first cousin of the child who has been approved as a guardianship placement.

Links to Agency Policies

Missouri Department of Social Services, Child Welfare Manual, see Section 4, Chapter 22

Placement of Children With Relatives

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Current Through July 2013

Relative Placement for Foster Care and Guardianship

Whenever a child is placed in a foster home and the court has determined that foster home placement with relatives is not contrary to the best interests of the child, the Children’s Division shall give foster home placement to relatives of the child. The division shall make diligent efforts to locate the grandparents of the child and determine whether they wish to be considered for placement of the child. Grandparents who request consideration shall be given preference and first consideration for foster home placement of the child. If more than one grandparent requests consideration, the family support team shall make recommendations to the juvenile or family court about which grandparent should be considered for placement.

The term ‘relative’ means a grandparent or any other person related to another by blood or affinity within the third degree. The status of a grandparent shall not be affected by the death or the dissolution of the marriage of a son or daughter.

The following shall be the order of preference for placement of a child under this section:

  • Grandparents and relatives
  • A trusted adult that has a preexisting relationship with the child, such as a godparent, teacher, neighbor, or fellow parishioner who voluntarily agrees to care for the child
  • Any foster parent who is currently licensed and capable of accepting placement of the child

For any Native American child placed in protective custody, the children’s division shall comply with the placement requirements set forth in 25 U.S.C. § 1915.

Requirements for Placement with Relatives

The preference for placement and first consideration for grandparents or preference for placement with other relatives only shall apply when the court finds the placement is not contrary to the best interests of the child, considering all circumstances. If the court finds that it is contrary to the best interests of a child to be placed with grandparents or other relatives, the court shall make specific findings detailing the reasons why the best interests of the child necessitate placement of the child with persons other than grandparents or other relatives.

The age of the child’s grandparent or other relative shall not be the only factor that the division takes into consideration when it makes placement decisions.

A grandparent or other relative may, on a case-by-case basis, have standards for licensure not related to safety waived that would otherwise impede licensing of the grandparent’s or relative’s home. In addition, any person receiving a preference may be licensed in an expedited manner if a child is placed under such person’s care.

The guardian ad litem shall ascertain the child’s wishes and feelings about his or her placement by conducting an interview with the child, based on the child’s age and maturity level, that shall be considered as a factor in placement decisions but shall not supersede the preference for relative placement or be contrary to the child’s best interests.

Requirements for Placement of Siblings

Recognizing the critical nature of sibling bonds for children, the division shall make reasonable efforts to place siblings in the same foster care, kinship, guardianship, or adoptive placement, unless doing so would be contrary to the safety or well-being of any of the siblings. If siblings are not placed together, the division shall make reasonable efforts to provide frequent visits or other ongoing interaction between the siblings, unless this interaction would be contrary to a siblings’ safety or well-being.

Relatives Who May Adopt

As used in this section, the term:

  • ‘Relative’ means any grandparent, aunt, uncle, adult sibling of the child, adult first cousin of the child, or any other person related to the child by blood or affinity.
  • ‘Close nonrelated person’ means any nonrelated person whose life is so intermingled with the child that the relationship is similar to a family relationship.

Any adult person or persons over age 18, who, as foster parent or parents, have cared for a foster child continuously for a period of 9 months or more and bonding has occurred as evidenced by the positive emotional and physical interaction between the foster parent and child, may apply to an authorized agency for the placement of the child with them for the purpose of adoption if the child is eligible for adoption. The agency and court shall give preference and first consideration for adoptive placements to foster parents. However, the final determination of the propriety of the adoption of that foster child shall be within the sole discretion of the court.

Requirements for Adoption by Relatives

Any subsidies available to adoptive parents shall also be available to the qualified relative of a child who is granted legal guardianship of the child in the same manner as such subsidies are available for adoptive parents.

In cases in which the adoption or custody involves a child under age 18 who is the natural child of one of the petitioners and all of the parents required to give consent to the adoption or transfer of custody have given such consent, the juvenile court may waive the investigation and report, except the criminal background check, and enter the decree for the adoption or order the transfer of custody without the investigation and report.

Reasonable Efforts to Preserve or Reunify Families and Achieve Permanency for Children

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Current Through March 2016

What Are Reasonable Efforts

The term ‘reasonable efforts’ means the exercise of reasonable diligence and care by the Children’s Division to utilize all available services related to meeting the needs of the juvenile and the family.

When Reasonable Efforts Are Required

Reasonable efforts must be made:

  • To prevent or eliminate the need for the removal of the child
  • After removal, to make it possible for the child to return home
When Reasonable Efforts Are NOT Required

The division shall not be required to make reasonable efforts, but it has the discretion to make reasonable efforts if the court has determined that:

  • The parent has subjected the child to severe or recurrent acts of physical, emotional, or sexual abuse, including an act of incest.
  • The parent has committed murder or voluntary manslaughter of another child of the parent, or aided, abetted, or attempted such act.
  • The parent has committed a felony assault that resulted in serious bodily injury to the child or to another child of the parent.
  • The parent’s parental rights to a sibling have been terminated involuntarily.

Standby Guardianship

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Current Through February 2015

Who Can Nominate a Standby Guardian

A custodial parent may designate a person to act as standby guardian of a minor.

The laws applicable to guardianship proceedings shall apply to all proceedings under this section, except to the extent determined by the court to be inconsistent with the provisions of this section or as expressly provided in this section.

How to Establish a Standby Guardian

The designation of a standby guardian may be made in a will that complies with the requirements of § 474.320 or by a separate written instrument that is dated and is either duly executed and acknowledged by the custodial parent or is signed by the custodial parent in the presence of at least two disinterested witnesses. If the custodial parent executes more than one document designating a standby guardian and there is a conflict between the documents as to the person designated, the document bearing the latest date shall control.

If a custodial parent who has designated a standby guardian is or becomes seriously ill, either the custodial parent or the person designated as standby guardian may file a petition in the probate division of the circuit court of the county that would be of proper venue for the appointment of a guardian for the child. A copy of the will or written instrument designating the standby guardian and a consent to act as standby guardian signed by the designated person shall be filed with the petition. The petition shall state:

  • The name, age, domicile, actual place of residence, and mailing address of the minor
  • The name and address of the custodial parent and the designated standby guardian
  • The name and address of each parent of the minor and whether that parent is living or dead
  • The name and address of the spouse, if applicable, and the names, ages, and addresses of all living children of the minor
  • If the person for whom appointment of a standby guardian is sought has been adjudicated incapacitated, the date of adjudication and the name and address of the court that entered the judgment
  • The reasons why the appointment of a standby guardian is sought
How Standby Authority is Activated

The court shall determine appointment of a standby guardian in accordance with the best interests of the minor after considering all relevant factors, including:

  • Whether there is a parent other than the custodial parent and, if so, whether the other parent is willing, able, and fit to assume the duties of a parent
  • The suitability of a person nominated by the minor, if he or she is able to communicate a reasonable choice
  • The desirability of providing arrangements for the care, custody, and control of the minor that shall minimize stress and disruption and avoid his or her placement in foster or similar care pending appointment of a guardian if the custodial parent is adjudicated incapacitated or dies

The authority of a person to act as standby guardian for a minor shall take effect only as follows:

  • If the person has previously been appointed by the court as standby guardian, upon the granting of letters of standby guardianship to that person
  • If the person has not previously been appointed as standby guardian, either because a petition for appointment has not been filed or because the proceedings are still pending, upon the first to occur of the following:
    • The duly executed consent of the custodial parent
    • Entry of an order adjudicating the custodial parent to be incapacitated
    • The death of the custodial parent

The person shall, within 10 days after he or she begins to act as standby guardian, notify the court in writing of that fact. The court may grant letters of standby guardianship to the person or, if the court deems it advisable, conduct a hearing to determine the propriety of the person having begun, and continuing, to act as standby guardian and the propriety of issuing letters of standby guardianship to the person.

Involvement of the Noncustodial Parent

Citation:
This issue is not addressed in the statutes reviewed.

Authority Relationship of the Parent and the Standby

Nothing in this section shall be construed to:

  • Deprive a parent of his or her legal rights with respect to a child of that parent, including court-ordered visitation with the child, nor to authorize a grant of authority to a standby guardian that would supersede any such rights
  • Relieve a parent of his or her legal obligations or duties to a child of that parent, including a duty to support the child in accordance with a court or administrative order
Withdrawing Guardianship

The authority of a guardian terminates:

  • When a minor ward becomes age 18
  • Upon an adjudication that an incapacitated or disabled person has been restored to his or her capacity or ability
  • Upon revocation of the letters of the guardian
  • Upon the acceptance by the court of the resignation of the guardian
  • Upon the death of the ward
  • Upon an order of court terminating the guardianship

 

CPS Statutes & Rules

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