MISSISSIPPI LEGISLATURE
2004 Regular Session
To: Juvenile Justice
By: Representative Flaggs
AN ACT TO AMEND SECTION 43-21-301, MISSISSIPPI CODE OF 1972, TO EXEMPT CHILDREN IN NEED OF SUPERVISION FROM THE REASONABLE EFFORTS REQUIREMENT; TO REQUIRE THAT CUSTODY ORDERS MUST RECITE THAT IT IS IN THE BEST INTERESTS OF CERTAIN CHILDREN TO BE PLACED IN FOSTER CARE; TO REQUIRE THAT IN CERTAIN SITUATIONS, REASONABLE EFFORTS BE MADE TO REUNIFY A CHILD WITH HIS OR HER FAMILY; TO AMEND SECTION 43-21-309, MISSISSIPPI CODE OF 1972, TO REQUIRE SHELTER HEARING ORDERS TO RECITE THAT IT IS IN THE BEST INTERESTS OF CERTAIN CHILDREN TO BE PLACED IN FOSTER CARE; TO AMEND SECTION 43-21-609, MISSISSIPPI CODE OF 1972, TO REQUIRE THAT CUSTODY ORDERS AND REASONABLE EFFORTS FINDINGS MUST RECITE THAT IT IS IN THE BEST INTERESTS OF CERTAIN CHILDREN TO BE PLACED IN FOSTER CARE; TO AMEND SECTION 43-21-613, MISSISSIPPI CODE OF 1972, TO REVISE THE TIME FRAME FROM WHICH THE COURT MUST CONDUCT A PERMANENCY HEARING; TO REQUIRE THAT ORDERS IN A PERMANENCY HEARING MUST RECITE THAT REASONABLE EFFORTS WERE MADE TO FINALIZE A CHILD'S PERMANENCY PLAN; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 43-21-301, Mississippi Code of 1972, is amended as follows:
43-21-301. (1) No court other than the youth court shall issue an arrest warrant or custody order for a child in a matter in which the youth court has exclusive original jurisdiction but shall refer the matter to the youth court.
(2) Except as otherwise provided, no child in a matter in which the youth court has exclusive original jurisdiction shall be taken into custody by a law enforcement officer, the Department of Human Services, or any other person unless the judge or his designee has issued a custody order to take the child into custody.
(3) The judge or his designee may issue an order to a law enforcement officer, the Department of Human Services, or any suitable person to take a child into custody for a period not longer than forty-eight (48) hours, excluding Saturdays, Sundays, and statutory state holidays if it appears that there is probable cause to believe that:
(a) The child is within the jurisdiction of the court; and
(b) Custody is necessary; custody shall be deemed necessary:
(i) When a child is endangered or any person would be endangered by the child; or
(ii) To insure the child's attendance in court at such time as required; or
(iii) When a parent, guardian or custodian is not available to provide for the care and supervision of the child; and
(c) There is no reasonable alternative to custody.
(4) The judge or his designee may order, orally or in writing, the immediate release of any child in the custody of any person or agency. Custody orders as provided by this chapter and authorizations of temporary custody may be written or oral, but, if oral, reduced to writing as soon as practicable. The written order shall:
(a) Specify the name and address of the child, or, if unknown, designate him or her by any name or description by which he or she can be identified with reasonable certainty;
(b) Specify the age of the child, or, if unknown, that he or she is believed to be of an age subject to the jurisdiction of the youth court;
(c) Except in cases where the child is alleged to be a delinquent child or a child in need of supervision, state that the effect of the continuation of the child's residing within his or her own home would be contrary to the welfare of the child, that the placement of the child in foster care is in the best interests of the child, and unless the reasonable efforts requirement, bypassed under Section 43-21-603(7)(c), also state that * * * (i) reasonable efforts have been made to maintain the child within his or her own home, but that the circumstances warrant his removal and there is no reasonable alternative to custody; or (ii) the circumstances are of such an emergency nature that no reasonable efforts have been made to maintain the child within his own home, and that there is no reasonable alternative to custody. If the court makes a finding in accordance with (ii) of this paragraph, the court shall order that reasonable efforts be made towards the reunification of the child with his or her family.
(d) State that the child shall be brought immediately before the youth court or be taken to a place designated by the order to be held pending review of the order;
(e) State the date issued and the youth court by which the order is issued; and
(f) Be signed by the judge or his designee with the title of his office.
(5) The taking of a child into custody shall not be considered an arrest except for evidentiary purposes.
(6) (a) No child who has been accused or adjudicated of any offense that would not be a crime if committed by an adult shall be placed in secure detention or in an adult jail or lockup. Further, no child who has been accused or adjudicated of an offense that would not be a crime if committed by an adult shall be held in a secure juvenile detention facility for a period in excess of twenty-four (24) hours, excluding Saturdays, Sundays and statutory state holidays, except that out-of-state runaways may be held pending return to their home state.
(b) No accused or adjudicated juvenile offender, except for an accused or adjudicated juvenile offender in cases where jurisdiction is waived to the adult criminal court, shall be detained or placed into custody of any adult jail or lockup for a period in excess of six (6) hours.
(c) If any county violates the provisions of paragraph (a) or (b) of this subsection, the state agency authorized to allocate federal funds received pursuant to the Juvenile Justice and Delinquency Prevention Act of 1974, 88 Stat. 2750 (codified in scattered sections of 5, 18, 42 USCS), shall withhold the county's share of such funds.
(d) Any county that does not have a facility in which to detain its juvenile offenders in compliance with the provisions of paragraphs (a) and (b) of this subsection may enter into a contractual agreement with any county or municipality that does have such a facility, or with the State of Mississippi, or with any private entity that maintains a juvenile correctional facility, or with the State of Mississippi, to detain or place into custody the juvenile offenders of the county not having such a facility.
(e) Notwithstanding the provisions of paragraphs (a), (b), (c) and (d) of this subsection, all counties shall be allowed a one-year grace period from March 27, 1993, to comply with the provisions of this subsection.
SECTION 2. Section 43-21-309, Mississippi Code of 1972, is amended as follows:
43-21-309. (1) A child who has been ordered or taken into custody may be held in custody for longer than temporary custody if:
(a) A written complaint or petition has been filed; and
(b) A court order has been entered for continued custody following a review of that custody at a detention hearing in delinquency and child in need of supervision cases and at a shelter hearing in abuse and neglect cases.
(2) Reasonable oral or written notice of the time, place and purpose of the hearing shall be given to the child; to his or her parent, guardian or custodian; to his or her guardian ad litem, if any; and to his or her counsel. If the parent, guardian or custodian cannot be found, the youth court may hold the hearing in the absence of the child's parent, guardian or custodian.
(3) At the detention or shelter hearing, all parties present shall have the right to present evidence and cross-examine witnesses produced by others. The youth court may, in its discretion, limit the extent but not the right or presentation of evidence and cross-examination of witnesses. The youth court may receive any testimony and other evidence relevant to the necessity for the continued custody of the child without regard to the formal rules of evidence, including hearsay and opinion evidence. All testimony shall be made under oath and may be in narrative form.
(4) (a) At the conclusion of the detention or shelter hearing, the youth court shall order that the child be released to the custody of the child's parent, guardian or custodian unless the youth court finds and the detention or shelter hearing order recites that:
(i) There is probable cause that the youth court has jurisdiction; and
(ii) Custody is necessary as defined in Section 43-21-301(3)(b).
(b) In the case of a shelter hearing, the shelter hearing order shall further recite that the effect of the continuation of the child's residing within his or her own home would be contrary to the welfare of the child, that the placement of the child in foster care is in the best interest of the child, and, unless the reasonable efforts requirement is bypassed under Section 43-21-603(7)(c), the order also must state:
(i) Reasonable efforts have been made to maintain the child within his own home, but that the circumstances warrant his removal and there is no reasonable alternative to custody; or (ii) The circumstances are of such an emergency nature that no reasonable efforts have been made to maintain the child within his own home, and there is no reasonable alternative to custody.
(c) In the event that the court makes a finding in accordance with subparagraph (ii), the court shall order that reasonable efforts be made towards the reunification of the child with his or her family * * *.
(5) The child with advice of counsel may waive in writing the time of the detention hearing or the detention hearing itself. The child's guardian ad litem, and parent, guardian or custodian, and child may waive in writing the time of the shelter hearing or the shelter hearing itself. If the child has not reached his tenth birthday, the child's consent shall not be required.
(6) Any order placing a child into custody shall comply with the requirements provided in Section 43-21-301.
SECTION 3. Section 43-21-609, Mississippi Code of 1972, is amended as follows:
43-21-609. In neglect and abuse cases, the disposition order may include any of the following alternatives, giving precedence in the following sequence:
(a) Release the child without further action;
(b) Place the child in the custody of his parents, a relative or other person subject to any conditions and limitations as the court may prescribe. If the court finds that temporary relative placement, adoption or foster care placement is inappropriate, unavailable or otherwise not in the best interest of the child, durable legal custody may be granted by the court to any person subject to any limitations and conditions the court may prescribe; such durable legal custody will not take effect unless the child or children have been in the physical custody of the proposed durable custodians for at least one (1) year under the supervision of the Department of Human Services. The requirements of Section 43-21-613 as to disposition review hearings does not apply to those matters in which the court has granted durable legal custody. In such cases, the Department of Human Services shall be released from any oversight or monitoring responsibilities;
(c) Order terms of treatment calculated to assist the child and the child's parent, guardian or custodian which are within the ability of the parent, guardian or custodian to perform;
(d) Order youth court personnel, the Department of Human Services or child care agencies to assist the child and the child's parent, guardian or custodian to secure social or medical services to provide proper supervision and care of the child;
(e) Give legal custody of the child to any of the following but in no event to any state training school:
(i) The Department of Human Services for appropriate placement; or
(ii) Any private or public organization, preferably community-based, able to assume the education, care and maintenance of the child, which has been found suitable by the court. Prior to assigning the custody of any child to any private institution or agency, the youth court through its designee shall first inspect the physical facilities to determine that they provide a reasonable standard of health and safety for the child;
(f) If the court makes a finding that custody is necessary as defined in Section 43-21-301(3)(b), and that the child, in the action pending before the youth court had not previously been taken into custody, the disposition order shall recite that the effect of the continuation of the child's residing within his or her own home would be contrary to the welfare of the child, that the placement of the child in foster care is in the best interests of the child, and unless the reasonable efforts requirement is bypassed under Section 43-21-603(7)(c), the order also must state:
(i) That reasonable efforts have been made to maintain the child within his or her own home, but that the circumstances warrant his or her removal, and there is no reasonable alternative to custody; or
(ii) The circumstances are of such an emergency nature that no reasonable efforts have been made to maintain the child within his or her own home, and there is no reasonable alternative to custody; or
(iii) If the court makes a finding in accordance with (ii) of this paragraph, the court shall order that reasonable efforts be made towards the reunification of the child with his or her family.
(g) If the court had, before the disposition hearing in the action pending before the court, taken the child into custody, the judge or referee shall determine, and the youth court order shall recite that reasonable efforts were made by the Department of Human Services to finalize the child's permanency plan that was in effect on the date of the disposition hearing.
SECTION 4. Section 43-21-613, Mississippi Code of 1972, is amended as follows:
43-21-613. (1) If the youth court finds, after a hearing which complies with the sections governing adjudicatory hearings, that the terms of a delinquency or child in need of supervision disposition order, probation or parole have been violated, the youth court may, in its discretion, revoke the original disposition and make any disposition which it could have originally ordered. The hearing shall be initiated by the filing of a petition that complies with the sections governing petitions in this chapter and that includes a statement of the youth court's original disposition order, probation or parole, the alleged violation of that order, probation or parole, and the facts which show the violation of that order, probation or parole. Summons shall be served in the same manner as summons for an adjudicatory hearing.
(2) On motion of a child or a child's parent, guardian or custodian, the youth court may, in its discretion, conduct an informal hearing to review the disposition order. If the youth court finds a material change of circumstances relating to the disposition of the child, the youth court may modify the disposition order to any appropriate disposition of equal or greater precedence which the youth court could have originally ordered.
(3) (a) Unless the youth court's jurisdiction has been terminated, all disposition orders for supervision, probation or placement of a child with an individual or an agency shall be reviewed by the youth court judge or referee at least annually to determine if continued placement, probation or supervision is in the best interest of the child or the public. For children who have been adjudicated abused or neglected, the youth court shall conduct a permanency hearing within twelve (12) months after the earlier of:
(i) An adjudication that the child has been abused or neglected; or
(ii) The date of the child's removal from the allegedly abusive or neglectful custodian/parent. Notice of such hearing shall be given in accordance with the provisions of Section 43-21-505(5). In conducting the hearing, the judge or referee shall require a written report and may require information or statements from the child's youth court counselor, parent, guardian or custodian, which includes, but is not limited to, an evaluation of the child's progress and recommendations for further supervision or treatment. The judge or referee shall, at the permanency hearing determine the future status of the child, including, but not limited to, whether the child should be returned to the parent(s) or placed with suitable relatives, placed for adoption, placed for the purpose of establishing durable legal custody or should, because of the child's special needs or circumstances, be continued in foster care on a permanent or long-term basis. If the child is in an out-of-state placement, the hearing shall determine whether the out-of-state placement continues to be appropriate and in the best interest of the child. At the permanency hearing the judge or referee shall determine, and the youth court order shall recite that reasonable efforts were made by the Department of Human Services to finalize the child's permanency plan that was in effect on the date of the permanency hearing. The judge or referee may find that reasonable efforts to maintain the child within his home shall not be required in accordance with Section 43-21-603(7)(c), and that the youth court shall continue to conduct permanency hearings for a child who has been adjudicated abused or neglected, at least annually thereafter, for as long as the child remains in the custody of the Mississippi Department of Human Services.
(b) The court may find that the filing of a termination of parental rights petition is not in the child's best interest if:
(i) The child is being cared for by a relative; and/or
(ii) The * * * Department of Human Services has documented compelling and extraordinary reasons why termination of parental rights would not be in the best interests of the child.
* * *
(c) The provisions of this subsection shall also apply to review of cases involving a dependent child; however, such reviews shall take place not less frequently than once each one hundred eighty (180) days. A dependent child shall be ordered by the youth court judge or referee to be returned to the custody and home of the child's parent, guardian or custodian unless the judge or referee, upon such review, makes a written finding that the return of the child to the home would be contrary to the child's best interests.
(d) Reviews are not to be conducted unless explicitly ordered by the youth court concerning those cases in which the court has granted durable legal custody. In such cases, the Department of Human Services shall be released from any oversight or monitoring responsibilities, and relieved of physical and legal custody and supervision of the child.
SECTION 5. This act shall take effect and be in force from and after July 1, 2004.