Rules 41, 47, 47.1, 50, 52, 58, and 68

R-09-0027

Emergency effective date of September 30, 2009 Public comments due May 20, 2010

Contact:
Caroline Lautt-Owens

Superior Courts

Judges
Clerks of the Court
Court Administrators

Amendments to the juvenile rules have been promulgated to conform to statutory changes concerning dependency, guardianship, and termination of parental rights proceedings.

Impact:

Rule 41: Attendance at hearings.

• When determining whether a dependency, permanent guardianship, or termination of parental rights proceeding should be closed to the public, the court must consider if an open proceeding could cause “specific material harm” to a criminal investigation. A court proceeding relating to child abuse, abandonment, or neglect that has resulted in a fatality or near fatality is open to the public, subject to this consideration and other factors enumerated in sub-section (E) of this rule and the requirements of A.R.S. § 8-807(F)(2).

• A child in foster care has a right to attend the child’s court hearing and speak to the judge. At the first hearing in a dependency, permanent guardianship, or termination proceeding, the court must determine that the child has been informed of and understands these rights.

Rule 47: Release of Information. The amendments provide factors for the court to consider when a request is made to inspect court records in a case involving child abuse, abandonment, or neglect that has resulted in a fatality or near fatality.

• If records are released, the court must redact information pursuant to the requirements of A.R.S. §§ 8-525(B) and (6) and 8-807(F)(2).

Rule 47.1: Mandatory judicial determinations. The amendments to this rule require the court to determine at the initial dependency hearing whether the Department is attempting to identify and assess placement of the child with a grandparent, another member of the child’s extended family, or a person who has a significant relationship with the child. At periodic review hearings, the court must determine

• Whether the Department of Economic Security has identified and assessed placement of a child with a grandparent, another member of the child’s extended family, or a person who has a significant relationship with the child;

• Whether the parent or guardian has provided the court with the names and other available information necessary to locate persons related to the child or who have a significant relationship with the child, or whether they have informed the court that there is insufficient information available to locate a relative or person with a significant relationship with the child; and

• Whether the parent or guardian informed the department immediately if they became aware of new information related to the existence or location of a relative or person who has a significant relationship with the child.

Rule 50: Preliminary protective hearing; and Rule 52: Initial dependency hearing. The amendment to these rules requires the court to order the parent or guardian to provide names, the types of relationships and all available information necessary to locate persons related to the child or who have a significant relationship with the child at the preliminary protective hearing (Rule 50) and at the initial dependency hearing (Rule 52).

Rule 58: Review hearing. The amendments to this rule address the statutory changes reducing the number of days (from thirty days to ten days within the last six months) a child has resided with foster parents in a foster home or in a shelter care facility or receiving foster home, that would entitle the foster parents, shelter care facility, or receiving foster home to get notice of court proceedings and the right to participate.

Rule 68: Definitions. The amendment to this rule requires, as part of the Investigative Report, a valid fingerprint clearance card of the prospective adoptive parent(s) and a valid fingerprint clearance card for each other adult member of the household, as required by law. The prospective parent and each other adult member of the household must certify on notarized forms whether that person is awaiting trial or has ever been convicted of any designated criminal offense.

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Rule 41(H)

R-08-0040

Contact: Caroline Lautt-Owens

Superior Courts

Judges
Clerks of the Court
Court Administrators

This rule amendment concerns the notice requirement for dependency, guardianship, and termination of parental rights proceedings.

Impact:

This amendment deletes the requirement that the court must ensure that notice of proceedings has been provided to foster parents, pre-adoptive parents, and relative caregivers in cases where the DES is not a petitioning party. However, the DES is required to provide notice to these parties when the Department is a party (and not only when it is a petitioner) in a case.

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Rules 48.1, 50, 52-62, and 65 Forms 1, 2, 3, and 1A

R-09-0013

Contact: Caroline Lautt-Owens

Superior Courts

Judges
Clerks of the Court
Court Administrators

Rules 48.1, 50, 52, 53, 54, 55, 56, 57, 58, 59, 60, 62, and 65 have been amended by adding a provision that, in addition to providing the verbal admonitions required by the Rules, the juvenile court may provide the parent, guardian, or Indian custodian with the appropriate form, request that it be signed and returned, and note on the record that the form was provided.

Impact:

General amendments to Forms:

• A provision was added informing the parent that hearings are open to the public unless the juvenile court, for good cause, orders them closed.

Form 1A (in-home intervention action): A new form 1A has been adopted that:

• Advises the parent, guardian, or Indian custodian of his or her responsibilities concerning an in-home intervention, and the possible consequences of a failure to fulfill those responsibilities.

Form 1 (dependency action): This form has been modified:

• To reflect that if the parent cannot be reunited within the legal time frames, the court may terminate parental rights, or the court may appoint a permanent guardian for the child.

• By adding language advising the parent that substantially neglecting or willfully refusing to participate in reunification services is grounds for terminating parental rights.

• By adding language that there will be additional court hearings, and if the parent cannot attend, he or she must prove to the court that they had good cause for not attending. If the parent fails to attend the pretrial conference, settlement conference, or dependency adjudication hearing without good cause, the court may determine that the parent waived legal rights and admitted the allegations in the dependency petition, and that the court may go forward with the dependency adjudication hearing in the parent’s absence.

Form 2 (guardianship action): This form has been modified:

• To reflect that a failure of a party to attend the initial guardianship hearing, pretrial conference, settlement conference, or guardianship adjudication hearing without good cause may be a waiver of legal rights and an admission of allegations; and that the court may go forward with the guardianship adjudication hearing in the parent’s absence and establish a guardianship for the child.

Form 3 (termination action): This form has been modified:

• To advise the parent that if the court determines that termination of parental rights would be in the child’s best interests, it may terminate parental rights.

• To reflect that a parent’s absence at an initial termination hearing, termination pretrial conference, status conference, or termination adjudication hearing without good cause may be a waiver of legal rights and an admission of allegations, and the court may go forward with a termination adjudication hearing in the parent’s absence.

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Rules 55 and 66

R-09-0015

Contact: Caroline Lautt-Owens

Superior Courts

Judges
Clerks of the Court
Court Administrators

These rule amendments deal with the burden of proof that the court must consider.

Impact:

Rule 55(C) is amended to conform to A.R.S. § 8-844(c)(1) and the holding in Valerie M. v. ADES by reflecting the proper burdens of proof for state-law and Indian Child Welfare Act findings.

Rule 66(C) is amended to conform to A.R.S. §§ 8-537(B) and 8-863(B) and the holdings in Valerie M. and Kent K. v. Bobby M. by reflecting the separate burdens of proof required for the termination grounds (clear and convincing evidence) and the best-interests finding (preponderance of the evidence.)

Rule 66(C) is also amended to conform to the ICWA by reflecting that the moving party or petitioner “satisfy the court” that active but unsuccessful efforts were made to prevent the breakup of the Indian family.

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Rules 23 and 28
Rule 26(A)(5)

R-08-0019

Contact:
Patrick Scott

Superior Courts

Judges
Clerks of the Court
Court Administrators
Probation Officers

Amendments to these rules regarding samples for DNA testing were adopted on an emergency basis on September 26, 2008. These rules are now permanently adopted, with certain modifications, including the following.

Impact:

• Upon admission of a juvenile to a detention facility for an offense listed in A.R.S. § 13-610(O)(3), the authorized juvenile court officer shall obtain from the arresting agency proof of compliance with A.R.S. § 13-610(K), that is, that a sample of bodily substances for DNA testing has been obtained from the juvenile and has been transmitted to the department of public safety.

• A revocation of release of a juvenile who has failed to comply with an order to submit to DNA testing may be initiated by a supervising juvenile probation officer or by a prosecutor by filing a written request with the court (rather than a verified petition.)

• A petition may be filed by an arresting authority or custodial agency requesting a court order that the juvenile submit a sample for DNA testing if the juvenile has previously refused to provide a sample.

The Order adopting these revised rules also adopted the following addition to the Rules of Juvenile Procedure:

Rule 26(A)(5): A notice compelling the appearance of a juvenile in court for an offense listed in A.R.S. § 13-610(O)(3) shall advise the juvenile to appear at a designated time and place to provide a sample for DNA testing, and to provide proof of compliance to the court at the proceeding to which the juvenile has been summoned.

See further Rules 7.3 and 7.5 of the Rules of Criminal Procedure, supra.

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Rules 41, 47.1, 50, 56, 58, 60, 61, 63, 79, 61.1 [63.1], and 62.1 [63.2]

R-08-0020

Contact:
Caroline Lautt-Owens

Superior Courts

Judges
Clerks of the Court
Court Administrators

The amendments to Rules 41, 47.1, 50, 56, 58, 60-61, 63 and 79 that were adopted on September 16, 2008 have been adopted on a permanent basis.

Impact:

These rules expedite permanency for children less than three years of age; and require the court, at the preliminary protective hearing, to inform a foster parent, pre-adoptive parent, or a member of the child’s extended family with whom the Department has placed the child of the right to be heard in any proceeding that will be held with respect to the child.

These rules also mandate that court proceedings regarding dependent children, permanent guardianship, and termination of parental rights are open to the public.

Rules 61.1 and 62.1 have been re-numbered as Rules 63.1 and 63.2 and were further amended. These rules establish procedures for the court to appoint a successor permanent guardian when a current permanent guardian is unable or unwilling to continue to serve as a permanent guardian.

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