Miss. R. Youth Ct. Prac. 11

As amended through March 21, 2024

Rule 11 - TEMPORARY CUSTODY ORDERS / CUSTODY ORDERS

(a) Delinquency and child in need of supervision proceedings.

(1) When a custody order may be issued. The youth court judge or referee, a chancellor sitting as a youth court judge, or the judge's designee, and no other judge of another court, may issue an order to take into temporary custody or custody a child within the original exclusive jurisdiction of the youth court, for a period not to exceed forty-eight (48) hours, excluding Saturdays, Sundays, and statutory state holidays, if the court finds and the temporary custody order or custody order recites that:

(i) there is probable cause the child is within the jurisdiction of the youth court; and

(ii) there is probable cause that custody is necessary.

Custody shall be deemed necessary:

(1) when a child is endangered or any person would be endangered by the child; or to insure the child's attendance in court at such time as required; or when a parent, guardian or custodian is not available to provide for the care and supervision of the child; and

(2) there is no reasonable alternative to custody. Unless there is substantial compliance with these procedures, the court shall order the child to be released to the custody of the child's parent, guardian, or custodian. Any order placing a child into custody shall comply with the requirements provided in section 43-21-301 of the Mississippi Code.

(2) Order requirements. The temporary custody order or custody order may be written or oral, but, if oral, reduced to writing as soon as practicable. The written order shall:

(i) specify the name and address of the child, or, if unknown, designate the child by any name or description by which the same can be identified with reasonable certainty;

(ii) specify the age of the child, or, if unknown, that the child is believed to be of an age subject to the jurisdiction of the youth court;

(iii) state that the child 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;

(iv) state the date issued and the youth court by which the order is issued; and

(v) be signed by the youth court judge or referee, or the judge's designee, with the title of his/her office.

(3) Custody requirements. The court shall comply with the following custodial requirements:

(i) No child who has been accused or adjudicated of any status offense shall be placed in an adult jail or lockup. An accused status offender shall not be held in secure juvenile detention longer than twenty-four (24) hours prior to and twenty-four (24) hours after an initial court appearance, excluding Saturdays, Sundays and statutory state holidays, except under the following circumstances: a status offender may be held in secure juvenile detention for violating a valid court order as set forth in Rule 10 of these rules and pursuant to the criteria as established by the federal Juvenile Justice and Delinquency Prevention Act of 2002, and any subsequent amendments thereto, and out-of-state runaways may be detained pending return to their home state.

(ii) 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.

(iii) The custody of any child taken into custody shall comply with the detention requirements of section 43-21-315 of the Mississippi Code.

(4) Additional orders. After a child is ordered into custody, the court may:

(i) arrange for the custody of the child with any private institution or agency caring for children;

(ii) commit the child to the Department of Mental Health pursuant to section 41-21-61 et seq.; or

(iii) order the Department of Human Services or any other public agency to provide for the custody, care and maintenance of the child.

(b) Child protection proceedings.

(1) When a custody order may be issued. The youth court judge or referee, or the judge's designee, or a chancellor when hearing, pursuant to section 93-11-65 of the Mississippi Code, an allegation of abuse or neglect of a child that first arises in the course of a custody or maintenance action, and no other judge of another court, may issue an order to take into custody a child within the exclusive original jurisdiction of the youth court, for a period not to exceed forty-eight (48) hours, excluding Saturdays, Sundays, and statutory state holidays, if the court finds and the custody order recites that:

(i) there is probable cause the child is within the jurisdiction of the court; and

(ii) there is probable cause that custody is necessary. Custody shall be deemed necessary:

(1) when a child is endangered or any person would be endangered by the child; or to insure the child's attendance in court at such time as required; or when a parent, guardian or custodian is not available to provide for the care and supervision of the child; and

(2) there is no reasonable alternative to custody. Unless there is substantial compliance with these procedures, the court shall order the child to be released to the custody of the child's parent, guardian, or custodian. Any order placing a child into custody shall comply with the requirements provided in section 43-21-301 of the Mississippi Code.

(2) Order requirements. The temporary custody order or custody order may be written or oral, but, if oral, reduced to writing as soon as practicable. The written order shall:

(i) specify the name and address of the child, or, if unknown, designate the child by any name or description by which the same can be identified with reasonable certainty;

(ii) specify the age of the child, or, if unknown, that the child is believed to be of an age subject to the jurisdiction of the youth court;

(iii) state that the effect of the continuation of the child's residing within the child's own home would be contrary to the welfare of the child, that the placement of the child in foster care or relative care is in the best interest of the child;

(iv) state and specify, unless the reasonable efforts requirement is bypassed under section 43-21-603(7)(c) of the Mississippi Code, that:

(a) reasonable efforts have been made to maintain the child within the child's own home, but that the circumstances warrant the child's removal and there is no reasonable alternative to custody; or

(b) the circumstances are of such an emergency nature that no reasonable efforts have been made to maintain the child within the child's own home, there is no reasonable alternative to custody, and reasonable efforts be made towards the reunification of the child with the child's family;

(v) state that the child 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;

(vi) state the date issued and the youth court by which the order is issued; and

(vii) be signed by the youth court judge or referee, the judge's designee, or chancellor, with the title of his/her office.

No child in the custody of the Department of Human Services, Division of Family and Children's Services shall be placed in a foster care setting that has not been licensed or approved as meeting the Department of Human Services, Division of Family and Children's Services licensure standards, except that a child may be placed with a relative if there is:

(1) an emergency process, as developed by the Department of Human Services, Division of Family and Children's Services in conjunction with the Council on Accreditation, that enables, after an initial screening of the relative's home in accordance with Mississippi's Settlement Agreement and Reform Plan, the child to be placed with the relative as soon as the child enters placement, and

(2) a full licensing process, which shall be completed no later than sixty (60) calendar days after the child has entered placement. The Department of Human Services, Division of Family and Children's Services may waive non-safety licensing requirements for relative foster placements in individual cases pursuant to federal regulations.

(3) Reasonable efforts, judicial determination required. Within sixty (60) days from the date of the child being removed from the child's home pursuant to the court's temporary custody order or custody order, the court shall conduct a hearing to determine whether the Department of Human Services, Division of Family and Children's Services has made reasonable efforts to prevent the removal of the child from the child's home or, pursuant to section 43-21-603(7) of the Mississippi Code, whether reasonable efforts were not required to prevent the removal.

(i)If reasonable efforts are made, but removal remains in the best interest of the child. If the court determines that the Department of Human Services, Division of Family and Children's Services has made reasonable efforts to prevent the removal of the child from the child's home but that removal remains in the best interest of the child, the court shall adopt a permanency plan and a concurrent plan and order that the Department of Human Services, Division of Family and Children's Services make reasonable efforts to timely finalize the permanency plan and concurrent plan for the child. Thereafter, until the permanency plan or concurrent plan is achieved, the court shall conduct a permanency hearing and permanency review hearings pursuant to these rules.

(ii)If reasonable efforts are not required for removal of the child. If the court determines that, pursuant to section 43-21-603(7) of the Mississippi Code, reasonable efforts were not required to prevent the removal of the child from the child's home, it shall adopt a permanency plan and concurrent plan and order that the Department of Human Services, Division of Family and Children's Services make reasonable efforts to timely finalize the adopted permanency plan andconcurrent plan for the child. Thereafter, until the permanency plan or concurrent permanency plan is achieved, the court shall conduct a permanency hearing and permanency review hearings pursuant to these rules.

(4) Additional orders. After a child is ordered into custody, the court may:

(i) arrange for the custody of the child with any private institution or agency caring for children;

(ii) commit the child to the Department of Mental Health pursuant to section 41-21-61 et seq.; or

(iii) order the Department of Human Services or any other public agency to provide for the custody, care and maintenance of the child.

Comments & Procedures

Rule 11(a), -(b).

These provisions comport with the statutory procedures. See Miss. Code Ann. §§ 43-21-301, -307, -315 (2008).

Rule 11(a)(1).

Factors the court may consider in determining whether custody is necessary include: the child's family ties and relationships; the child's prior delinquency record; the violent nature of the alleged offense; the child's prior history of committing acts that resulted in bodily injury to others; the child's character and mental condition; the court's ability to supervise the child if placed with a parent or relative; the child's ties to the community; the risk of nonappearance; the danger to the child or public if the child is released; another petition is pending against the child; the home conditions of the child; and a violation of a valid court order. Accord Michigan Court Rule 3.935(C). The court must include its findings in the temporary custody or custody order.

Justice and municipal courts may not issue an order to take a child into custody, or an arrest warrant, for any child within the exclusive original jurisdiction of the youth court. Such is not applicable to offenses outside the exclusive original jurisdiction of the youth court, e.g., hunting, fishing or traffic violations. See White v. Walker, 950 F.2d 972, 979 (5th Cir. 1991). However, in those instances, the custody of the child must comply with all state and federal laws pertaining to the detention of juveniles. See U.R.Y.C.P. 19(c). When a child is convicted of a misdemeanor offense by a criminal court having original jurisdiction of the misdemeanor charge and the sentence includes that the child is to be committed to, incarcerated in or imprisoned in a jail or other place of detention, the commencement of such commitment, incarceration or imprisonment in a jail or other place of detention is stayed until the criminal court has notified the youth court judge or the judge's designee of the conviction and sentence.

Rule 11(b)(2).

The foster child relative licensing process consists of:

(1) an emergency process and

(2) a full licensing process. The emergency process requires, in accordance with Mississippi Department of Human Services policies, that background checks and Central Registry checks be completed on all persons residing in the home who are fourteen (14) years of age or older and the completion of an emergency placement safety checklist of the home. The full licensing process requires, in accordance with Mississippi Department of Human Services policies, that the relative completes, within 60 calendar days after the child has been placed in the home, the full home study, fifteen hours of training, and all other licensure requirements. See RESOURCE FAMILY LICENSURE POLICY, MDHS POLICY MANUAL 4500-43 (2008); see also Olivia Y., 351 F. Supp. 2d 543 (S.D. Miss. 2004) (regarding the placement of children in DCFS custody with available relatives).

Emergency Placement Safety Checklist.

The Emergency Placement Safety Checklist requires the family protection specialist or caseworker to:

conduct a local law enforcement background check;

conduct a MACWIS background check;

conduct a gun safety check (all weapons shall be safely stored away);

check that all utilities are working;

check that there is access to an operable telephone;

check that there is clear access to exits;

check that hazardous substances are safeguarded;

check that premises are free of rodents and insects;

check that the refrigerator, stove and oven are operable;

check that there is a functional sewage system; and

check that the interior plumbing has running warm and cold water.

For purposes of eligibility of foster care maintenance payments under Title IV-E of the Social Security Act, the "reasonable efforts" determination must be made no later than 60 days from the date the child is removed from the home. See 42 U.S.C. §§ 672(a)(2)(A), -671(a)(15) (2008); 45 C.F.R. § 1356.21(b)(1) (2008).

For purposes of eligibility of foster care maintenance payments under Title IV-E of the Social Security Act, the "contrary to the welfare" determination must be made in the first court ruling that sanctions (even temporarily) the removal of a child from the home. See 42 U.S.C. § 672(a)(2)(A) (2008); 45 C.F.R. § 1356.21(c) (2008).

Rule 11(a)(4), -(b)(4).

These provisions comport with the statutory procedures. See Miss. Code Ann. § 43-21-315(4) (2008).

Federal Requirements

These rules require compliance with federal laws and regulations which impact funding for cases within the jurisdiction of the youth court. See U.R.Y.C.P. 7. Failure to comply results in the loss of federal monies crucial in achieving the best interests of the child and the interest of justice. Federal laws and regulations applicable to custody orders include:

Removal and foster care placement requirements.

42 U.S.C. § 672(a)(2)(A); 671(a)(15) (2008) (requiring "contrary to the welfare of the child" and "reasonable efforts" determinations as set forth therein for eligibility of title IV-E foster care maintenance payments).

Reasonable efforts determination.

45 C.F.R. § 1356.21 (2008) provides in part:

(b) Reasonable efforts determination. . . .

(1) Judicial determination of reasonable efforts to prevent a child's removal from the home.

(i) When a child is removed from his/her home, the judicial determination as to whether reasonable efforts were made, or were not required to prevent the removal, in accordance with paragraph (b)(3) of this section, must be made no later than 60 days from the date the child is removed from the home pursuant to paragraph (k)(1)(ii) of this section.

(ii) If the determination concerning reasonable efforts to prevent the removal is not made as specified in paragraph (b)(1)(i) of this section, the child is not eligible under the title IV-E foster care maintenance payments program for the duration of that stay in foster care.

Judicial determination of reasonable efforts to finalize a permanency plan.

45 C.F.R. § 1356.21 (2008) provides in part:

(b) Reasonable efforts. . . .

(2) Judicial determination of reasonable efforts to finalize a permanency plan.

(i) The State agency must obtain a judicial determination that it has made reasonable efforts to finalize the permanency plan that is in effect (whether the plan is reunification, adoption, legal guardianship, placement with a fit and willing relative, or placement in another planned permanent living arrangement) within twelve months of the date the child is considered to have entered foster care in accordance with the definition at § 1355.20 of this part, and at least once every twelve months thereafter while the child is in foster care.

(ii) If such a judicial determination regarding reasonable efforts to finalize a permanency plan is not made in accordance with the schedule prescribed in paragraph (b)(2)(i) of this section, the child becomes ineligible under title IV-E at the end of the month in which the judicial determination was required to have been made, and remains ineligible until such a determination is made.

Contrary to the welfare determination.

45 C.F.R. § 1356.21 (2008) provides in part:

(c) Contrary to the welfare determination. Under section 472(a)(1) of the Act, a child's removal from the home must have been the result of a judicial determination (unless the child was removed pursuant to a voluntary placement agreement) to the effect that continuation of residence in the home would be contrary to the welfare, or that placement would be in the best interest, of the child. The contrary to the welfare determination must be made in the first court ruling that sanctions (even temporarily) the removal of a child from home. If the determination regarding contrary to the welfare is not made in the first court ruling pertaining to removal from the home, the child is not eligible for title IV-E foster care maintenance payments for the duration of that stay in foster care.

Concurrent planning.

45 C.F.R. § 1356.21 (2008) provides in part:

(b) Reasonable efforts. . . .

(4) Concurrent planning. Reasonable efforts to finalize an alternative permanency plan may be made concurrently with reasonable efforts to reunify the child and family.

Detention of juveniles.

42 U.S.C. § 5633 (2008); 28 C.F.R. 31.301 (2008) (setting forth requirements for placing juveniles in secure juvenile detention).

Forms

All orders of the court shall be in substantial compliance with these rules. Courts which do not utilize the Mississippi Youth Court Information Delivery System (MYCIDS) or other network database of Mississippi youth courts, such as SWORD, may access at http://www.mssc.state.ms.us the following form(s):

PETITION TO TAKE CHILD INTO CUSTODY (DELINQUENT CHILD / CHILD IN NEED OF SUPERVISION);

ORDER TO TAKE CHILD INTO CUSTODY (DELINQUENT CHILD / CHILD IN NEED OF SUPERVISION);

PETITION TO TAKE CHILD INTO CUSTODY (ABUSE AND NEGLECT);

ORDER TO TAKE CHILD INTO CUSTODY (ABUSE AND NEGLECT).

Miss. R. Youth Ct. Prac. 11

The Uniform Rules of Youth Court Practice were revised by order entered 7/17/2012; amended effective 12/1/2016.