Miss. R. Youth Ct. Prac. 28

As amended through March 21, 2024

Rule 28 - Modification of Disposition Orders / Annual Reviews

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

(1) Modification of orders. Procedures governing the modification of a disposition order of a delinquent child or a child in need of supervision shall be conducted pursuant to section 43-21- 613(1) and (2) of the Mississippi Code. Service of summons for such hearings shall be pursuant to Rule 22(c) of these rules.

(2) Annual reviews. Unless the 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 court at least annually to determine if continued placement, probation or supervision is in the best interest of the child or the public.

(b) Child protection proceedings.

(1) Modification of orders. Procedures governing the modification of a disposition order of an abused or neglected child shall be conducted pursuant to section 43-21-613(2) of the Mississippi Code. Service of summons for such hearings shall be pursuant to Rule 22(c) of these rules.

(2) Child protection reviews. Child protection reviews for abused or neglected children shall be conducted pursuant to Rules 29 and 31 of these rules.

(c) Dependent children.

(1) Modification of orders. Procedures governing the modification of a disposition order of a dependent child shall be conducted pursuant to section 43-21-613(2) of the Mississippi Code. Service of summons for such hearings shall be pursuant to Rule 22(c) of these rules.

(2) Child protection reviews. Child protection reviews for dependent children shall be conducted pursuant to Rules 29 and 31 of these rules.

(d) Durable legal custody.

(1) Modifications of orders. Procedures governing the modification of a durable legal custody order of a neglected or abused child shall be conducted pursuant to section 43-21-613(2) of the Mississippi Code. Service of summons for such hearings shall be pursuant to Rule 22(c) of these rules. A durable legal custody order shall not be modified except upon the court finding:

(i) a substantial change in circumstances which has adversely affected the child;

(ii) that the order modifying the durable legal custody order remedies the conditions; and

(iii) that such modification is in the best interest of the child and the interests of justice.

(2) Permanency review hearings not required. The requirements of section 43-21-613 of the Mississippi Code as to durable legal custody review hearings do not apply. Instead, permanency review hearings are not to be conducted unless explicitly ordered by the court. 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.

Comments & Procedures

Rule 28(a).

The youth court has continuing jurisdiction to modify the disposition of a delinquent or child in need of supervision as necessary. See In re Litdell, 232 So. 2d 733, 736 (Miss. 1970) ("The youth court's jurisdiction of a youth adjudged to be delinquent is a continuing one, with continuing power to alter the terms of the probation if, in the best interests of the child, the original arrangement proves inadequate or to have been ill advised."). Any modification is to be of equal or greater precedence which the youth court could have originally ordered. See Miss. Code Ann. § 43-21-613(2) (2008).

Rule 28(b).

The youth court has continuing jurisdiction to modify the disposition of an abused or neglected child as necessary. See In re R.D., 658 So. 2d 1378, 1386 (Miss. 1995) ("Section 43-21-613 provides that orders of the youth court determining the disposition of a child who has been adjudicated neglected, for instance, may be modified in the discretion of the youth court thereafter, as necessary."). Modification of a custody order requires a material change in circumstances and that the modification be in the best interest of the child. See In re V.L.W., 751 So. 2d 1033, 1035 (Miss. 1999). Any modification is to be of equal or greater precedence which the youth court could have originally ordered. See Miss. Code Ann. § 43-21-613(2) (2008).

Rule 28(c).

This provision comports with the statutory procedures. See Miss. Code Ann. § 43-21-613(3)(c) (2008).

Rule 28(d).

This provision comports with the statutory procedures. See Miss. Code Ann. §§ 43-21-609(b), - 613(3)(d) (2008).

Section 43-21-609(b) of the Mississippi Code provides in part: "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." Granting of durable legal custody, however, does not preclude the court from conducting a review hearing of its order. See In re S.A.M., 826 So. 2d 1266, 1279 (Miss. 2002) ("[T]he intent of durable legal custody is merely to avoid the required annual dispositional reviews by the youth court and constant oversight and monitoring by DHS, not a complete preclusion of the court's jurisdiction, DHS's further involvement or court ordered review hearings as needed."). Durable legal custody is not allowed as an alternative disposition unless the child has been in the physical custody of the proposed durable custodians for at least one year under the supervision of the Department of Human Services. See May v. Harrison County Dep't of Human Servs., 883 So. 2d 74, 82 (Miss. 2004). The granting of durable legal custody does not afford the durable legal custodian any greater rights than those of a foster parent. See Barnett v. Oathout, 883 So. 2d 563, 1279 (Miss. 2004).

Miss. R. Youth Ct. Prac. 28

The Uniform Rules of Youth Court Practice were revised by order entered 7/17/2012.