Current with amendments received through 5/15/11
Juv. Ct. R.P.
53
17B A.R.S. Juv.Ct.Rules of Proc., Rule 53 Arizona Revised Statutes Annotated Currentness
Rules of Procedure for the Juvenile Court (Refs & Annos)
Part III. Dependency, Guardianship and Termination of Parental Rights
3. Dependency
Rule 53. Settlement Conference
A. Purpose. A settlement conference may be held for the purpose of identifying and resolving issues in a non-adversarial manner. In order to facilitate the conference, counsel shall meet with their clients prior to the conference.
B. Settlement Conference Memorandum. At least five days prior to the settlement conference, each party shall provide the court with a confidential settlement conference memorandum, which shall address the following:
1. A general description of the issues to be litigated and the position of each party with respect to each issue;
2. A general description of the evidence to be presented by each party;
3. A summary of any attempts to settle the matter;
4. An assessment by each party of the anticipated result if the matter did proceed to trial; and
5. Any other information a party believes would be helpful to the settlement process, including acceptable settlement proposals.
C. Procedure.
1. The assigned trial judge shall only participate in settlement discussions with the consent of the parties. In all other cases, the discussions shall be held before another judicial officer.
2. Statements made in the course of settlement negotiations shall not be used in future hearings, except as permitted by Rule 408, Ariz. Rules of Evidence;
3. The court may engage in ex parte communications with the consent of all those participating in the conference; and
4. If the parties are unable to reach agreement as to all issues, the parties shall advise the court of those issues which will be litigated and the time needed to conduct the dependency adjudication hearing.
D. Findings and Orders. All findings and orders shall be in the form of a signed order or contained in a minute entry. At the conclusion of the settlement conference, the court may:
1. Adjudicate the child dependent and enter findings and orders pursuant to Rule 55 and set or conduct a disposition hearing pursuant to Rule 56, if the court finds the parent, guardian or Indian custodian admits or does not contest that the child is dependent;
2. Adjudicate the child dependent and enter findings and orders pursuant to Rule 55 and set or conduct a disposition hearing pursuant to Rule 56 if the court finds that the parent, guardian or Indian custodian failed to appear at the settlement conference without good cause shown, had notice of the hearing, was properly served pursuant to Rule 48 and had been previously admonished regarding the consequences of failure to appear, including a warning that the hearing could go forward in the absence of the parent, guardian or Indian custodian and that failure to appear may constitute a waiver of rights and an admission to the allegations contained in the dependency petition. The court may adjudicate the child dependent based upon the record and evidence presented if the petitioner has established grounds upon which to adjudicate the child dependent;
3. Set a dependency adjudication hearing and may set a pretrial conference if the parties are unable to reach agreement;
4. Address the parent, guardian or Indian custodian in open court and advise the parent, guardian or Indian custodian that failure to attend the pretrial conference or the dependency adjudication hearing, without good cause shown, may result in a finding that the parent, guardian or Indian custodian has waived legal rights and is deemed to have admitted the allegations in the dependency petition. The court shall advise the parent, guardian or Indian custodian that the hearings may go forward in the absence of the parent, guardian or Indian custodian and may result in a finding of dependency based upon the record and evidence presented. The party shall also be advised that failure to participate in reunification services may result in the termination of parental rights or the establishment of a permanent guardianship of the child. The court shall make specific findings that it advised the parent, guardian or Indian custodian of the consequences of failure to attend subsequent proceedings and participate in reunification services. The court may provide the parent, guardian or Indian custodian with a copy of Form 1, request that the parent, guardian or Indian custodian sign and return a copy of the Form, and note on the record that the Form was provided;
5. If the Indian Child Welfare Act applies, the court shall make findings pursuant to the standards and burdens of proof as required by the Act, including whether placement of the Indian child is in accordance with Section 1915 of the Act or whether there is good cause to deviate from the preferences; and
6. Make findings and enter any other orders as may be appropriate or required by law, including the preparation of a disposition report as required in Rule 56.
CREDIT(S)
Added Oct. 27, 2000, effective Jan. 1, 2001. Amended Jan. 20, 2006, effective July 1, 2006; Sept. 3, 2009, effective Jan. 1, 2010.
COMMITTEE COMMENT
See comment to Rule 50.
APPLICATION
<Rules 9 through 35 shall apply to cases in which the offense occurred on or after January 1, 2001; Rules 36 through 66 shall apply to cases filed on or after January 1, 2001; and, Rules 67 through 87 shall apply to actions commenced on or after January 1, 2001.>
17B A. R. S. Juv. Ct. Rules of Proc., Rule 53, AZ ST JUV CT Rule 53
Current with amendments received through 5/15/11
Juv. Ct. R.P.
54
17B A.R.S. Juv.Ct.Rules of Proc., Rule 54
Arizona Revised Statutes Annotated Currentness
Rules of Procedure for the Juvenile Court (Refs & Annos)
Part III. Dependency, Guardianship and Termination of Parental Rights
3. Dependency
Rule 54. Pretrial conference
A. Purpose. A pretrial conference may be held prior to the dependency adjudication hearing to determine whether the parties are prepared and intend to proceed to trial or whether resolution of remaining issues in a non-adversarial manner is possible and to address any issues raised by the parties. Counsel shall meet with their clients prior to the conference.
B. Procedure.
1. If the parties wish to discuss possible settlement, the court shall conduct a settlement conference pursuant to Rule 53; or
2. If the parties advise the court that the matter will proceed to trial, the parties and the court shall confer to determine:
a. Whether disclosure has been made pursuant to Rule 44(B)(2);
b. The time needed for trial;
c. The scheduling of witnesses;
d. Any other issues raised by the parties as may be appropriate; and
e. Whether the trial will be closed to the public.
f. How a verbatim record of the dependency adjudication hearing will be made.
C. Findings and Orders. All findings and orders shall be in the form of a signed order or contained in a minute entry. At the conclusion of the pretrial conference, the court may:
1. Adjudicate the child dependent and enter its findings and orders pursuant to Rule 55 and set or conduct a disposition hearing pursuant to Rule 56 if the court finds the parent, guardian or Indian custodian admits or does not contest that the child is dependent;
2. Adjudicate the child dependent and enter findings and orders pursuant to Rule 55 and set or conduct a disposition hearing pursuant to Rule 56 if the court finds that the parent, guardian or Indian custodian failed to appear at the pretrial conference without good cause shown, had notice of the hearing, was properly served pursuant to Rule 48 and had been previously admonished regarding the consequences of failure to appear, including a warning that the hearing could go forward in the absence of the parent, guardian or Indian custodian and that failure to appear may constitute a waiver of rights and an admission to the allegations contained in the dependency petition. The court may adjudicate the child dependent based upon the record and evidence presented if the petitioner has established grounds upon which to adjudicate the child dependent;
a. Set a dependency adjudication hearing date if the parties are unable to reach agreement. The court may order the parties to submit individual or joint pretrial statements to each other and the court prior to trial and/or submit proposed findings of fact and conclusions of law. The pretrial statement shall contain the information set forth in Rule 44(B)(2)(a-e).
b. Address the parent, guardian or Indian custodian in open court and advise the parent, guardian or Indian custodian that failure to attend the dependency adjudication hearing, without good cause shown, may result in a finding that the parent, guardian or Indian custodian has waived legal rights and is deemed to have admitted the allegations in the dependency petition. The court shall advise the parent, guardian or Indian custodian that the hearings may go forward in the absence of the parent, guardian or Indian custodian and may result in a finding of dependency based upon the record and evidence presented. The party shall also be advised that failure to participate in reunification services may result in the termination of parental rights or the establishment of a permanent guardianship of the child. The court shall make specific findings that it advised the parent, guardian or Indian custodian of the consequences of failure to attend subsequent proceedings and participate in reunification services. The court may provide the parent, guardian or Indian custodian with a copy of Form 1, request that the parent, guardian or Indian custodian sign and return a copy of the Form, and note on the record that the Form was provided;
c. If the Indian Child Welfare Act applies, the court shall make findings pursuant to the standards and burdens of proof as required by the Act, including whether placement of the Indian child is in accordance with Section 1915 of the Act or whether there is good cause to deviate from the preferences; and
d. Make findings and enter any other orders as may be appropriate or required by law, including limiting the issues to be litigated at the dependency adjudication hearing and ordering the preparation of a disposition report as required in Rule 56.
CREDIT(S)
Added Oct. 27, 2000, effective Jan. 1, 2001. Amended and effective on an emergency basis Jan. 26, 2004. Amended Jan. 20, 2006, effective July 1, 2006; Sept. 18, 2006, effective Jan. 1, 2007; Sept. 3, 2009, effective Jan. 1, 2010. Amended and effective Sept. 2, 2010.
COMMITTEE COMMENT
See comment to Rule 50.
APPLICATION
<Rules 9 through 35 shall apply to cases in which the offense occurred on or after January 1, 2001; Rules 36 through 66 shall apply to cases filed on or after January 1, 2001; and, Rules 67 through 87 shall apply to actions commenced on or after January 1, 2001.>
HISTORICAL NOTES
[Editor's Note] It was further ordered in the January 26, 2004 order that the changes shall be circulated for public comment, and that the comments shall be filed in the Supreme Court Clerk's Office on or before April 2, 2004. Approved June 8, 2004 on a permanent basis.
17B A. R. S. Juv. Ct. Rules of Proc., Rule 54, AZ ST JUV CT Rule 54
Current with amendments received through 5/15/11
Juv. Ct. R.P.
55
17B A.R.S. Juv.Ct.Rules of Proc., Rule 55., Arizona Revised Statutes Annotated Currentness
Rules of Procedure for the Juvenile Court (Refs & Annos)
Part III. Dependency, Guardianship and Termination of Parental Rights
3. Dependency
Rule 55. Dependency Adjudication Hearing
A. Purpose. The court shall conduct the adjudication hearing for the purpose of determining whether the petitioner has met the burden of proving the child dependent.
B. Time Limits. The dependency adjudication hearing shall be completed within ninety (90) days of service of the dependency petition on the parent, guardian or Indian custodian. The court may continue a dependency adjudication hearing beyond the time prescribed by law only upon a finding of extraordinary circumstances. Extraordinary circumstances include but are not limited to acts or omissions that are unforeseen or unavoidable. Any party requesting a continuance shall file a motion for extension of time, setting forth the reasons why extraordinary circumstances exist. The motion shall be filed within five (5) days of the discovery that extraordinary circumstances exist. The court's finding of extraordinary circumstances shall be in writing and shall set forth the factual basis for the continuance.
C. Burden of Proof. The petitioner must prove the allegations in the petition by a preponderance of the evidence. In addition, if the child is an Indian child, the petitioner must prove, by clear and convincing evidence, including testimony from a qualified expert witness, that continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child. The petitioner must also satisfy the court that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that those efforts have proven unsuccessful.
D. Procedure. The presentation of evidence at the dependency adjudication hearing shall be as informal as the requirements of due process and fairness permit and shall generally proceed in a manner similar to the trial of a civil action before the court without a jury.
1. Admission/No Contest. A parent, guardian or Indian custodian may waive the right to trial on the allegations contained in the dependency petition by admitting or not contesting the allegations. An admission or plea of no contest may be oral or in writing. In accepting an admission or plea of no contest, the court shall:
a. Determine whether the party understands the rights being waived;
b. Determine whether the admission or plea of no contest is knowingly, intelligently and voluntarily made;
c. Determine whether a factual basis exists to support a finding of dependency; and
d. Proceed with entering the findings and orders as set forth in subsection (E) of this rule.
2. Failure to Appear. If the parent, guardian or Indian custodian fails to appear at the dependency adjudication hearing without good cause shown and the court finds the parent, guardian or Indian custodian had notice of the hearing, was properly served pursuant to Rule 48 and had been previously admonished regarding the consequences of failure to appear, including a warning that the hearing could go forward in the absence of the parent, guardian or Indian custodian and that failure to appear may constitute a waiver of rights and an admission to the allegations contained in the dependency petition, the court may adjudicate the child dependent based upon the record and evidence presented if the petitioner has proven grounds upon which to adjudicate the child dependent. The court shall enter its findings and orders pursuant to subsection (E) of this rule.
3. Amendments to Conform to Evidence. Any amendments made to conform to the evidence shall be made pursuant to Rule 15(b), Ariz. R. Civ. P.
E. Findings and Orders. All findings and orders shall be in the form of a signed order or contained in a minute entry. As to each parent, guardian or Indian custodian, based upon the record and evidence presented, the court shall:
1. Enter findings that the court has jurisdiction over the subject matter and persons before the court;
2. Dismiss the petition and return the child to the parent, guardian or Indian custodian if the petitioner fails to meet the required burden of proof; or
3. Set forth specific findings of fact in support of a finding of dependency and adjudicate the child dependent, as defined by law, if the petitioner met the burden of proof; and
4. Conduct the disposition hearing pursuant to Rule 56 or set the disposition hearing within thirty (30) days and order the preparation of a disposition report as required by Rule 56(C);
5. Enter orders concerning the placement and custody of the child pending disposition;
6. Address the parent, guardian or Indian custodian in open court and advise the parent, guardian or Indian custodian that failure to attend further proceedings without good cause shown and failure to participate in reunification services may result in the termination of parental rights or the establishment of a permanent guardianship of the child, based upon the record and evidence presented. The court shall advise the parent, guardian or Indian custodian that the hearings may go forward in the absence of the parent, guardian or Indian custodian. The court shall make specific findings that it advised the parent, guardian or Indian custodian of the consequences of failure to attend subsequent proceedings and participate in reunification services. The court may provide the parent, guardian or Indian custodian with a copy of Form 1, request that the parent, guardian or Indian custodian sign and return a copy of the Form, and note on the record that the Form was provided;
7. If the Indian Child Welfare Act applies, the court shall make findings pursuant to the standards and burdens of proof as required by the Act, including whether placement of the Indian child is in accordance with Section 1915 of the Act or whether there is good cause to deviate from the preferences; and
8. Make findings and enter any other orders as may be appropriate or required by law.
CREDIT(S)
Added Oct. 27, 2000, effective Jan. 1, 2001. Amended Jan. 20, 2006, effective July 1, 2006; Sept. 3, 2009, effective Jan. 1, 2010.
COMMITTEE COMMENT
It is the recommendation of the committee that, in addition to the admonition set forth in this rule, the court should consider providing the parent, guardian or Indian custodian with a separate written copy of the admonition in order to protect the due process rights of the parent, guardian or Indian custodian. See Forms 2 and 3.
APPLICATION
<Rules 9 through 35 shall apply to cases in which the offense occurred on or after January 1, 2001; Rules 36 through 66 shall apply to cases filed on or after January 1, 2001; and, Rules 67 through 87 shall apply to actions commenced on or after January 1, 2001.>
17B A. R. S. Juv. Ct. Rules of Proc., Rule 55, AZ ST JUV CT Rule 55
Current with amendments received through 5/15/11
Juv. Ct. R.P.
56
17B A.R.S. Juv.Ct.Rules of Proc., Rule 56
Arizona Revised Statutes Annotated Currentness
Rules of Procedure for the Juvenile Court (Refs & Annos)
Part III. Dependency, Guardianship and Termination of Parental Rights
3. Dependency
Rule 56. Disposition Hearing
A. Purpose. The court shall conduct a disposition hearing to determine the appropriate placement of a child who has been adjudicated dependent and shall review the permanent case plan which has been established for the child.
B. Time Limits. The disposition hearing shall be held within thirty (30) days of the dependency adjudication or in conjunction with the preliminary protective hearing, initial dependency hearing, mediation, settlement or pretrial conference or dependency adjudication hearing.
C. Disposition Report. The court may order the petitioner to prepare and file a disposition report which shall include dispositional recommendations and the basis for the recommendations made. The report shall be provided to the court and the parties five (5) days prior to the hearing, unless otherwise ordered by the court.
D. Procedure. The court shall determine the appropriate disposition and may consider evidence, in the form of testimony or documents, which may include:
1. The oral or written disposition reports of the parties;
2. Documents previously entered into evidence at prior proceedings;
3. Expert testimony or reports;
4. Documents agreed upon by the parties; and
5. Any other evidence admitted by the court.
E. Findings and Orders. All findings and orders shall be in the form of a signed order or contained in a minute entry. The court shall determine the appropriate case plan and shall:
1. Enter orders concerning appropriate services required to achieve the case plan;
2. Enter orders concerning the placement and custody of the child;
3. Set a review hearing within six (6) months and set the permanency planning hearing;
4. Order concurrent planning if appropriate;
5. Address the parent, guardian or Indian custodian in open court and advise the parent, guardian or Indian custodian that failure to attend further proceedings without good cause shown and failure to participate in reunification services may result in the termination of parental rights or the establishment of a permanent guardianship of the child, based upon the record and evidence presented. The court shall advise the parent, guardian or Indian custodian that the hearings may go forward in the absence of the parent, guardian or Indian custodian. The court shall make specific findings that it advised the parent, guardian or Indian custodian of the consequences of failure to attend subsequent proceedings and participate in reunification services. The court may provide the parent, guardian or Indian custodian with a copy of Form 1, request that the parent, guardian or Indian custodian sign and return a copy of the Form, and note on the record that the Form was provided;
6. If the Indian Child Welfare Act applies, the court shall make findings pursuant to the standards and burdens of proof as required by the Act, including whether placement of the Indian child is in accordance with Section 1915 of the Act or whether there is good cause to deviate from the preferences; and
7. Make any determinations required by Rule 47.1 and make any other findings and enter any other orders as may be appropriate or required by law.
8. Advise the parties present at the hearing and identified in Rule 58(B)(1) of their right to participate in periodic review hearings.
CREDIT(S)
Added Oct. 27, 2000, effective Jan. 1, 2001. Amended on emergency basis effective Jan. 31, 2002. Adopted in final form, effective May 31, 2002. Amended and effective on an emergency basis Jan. 26, 2004. Amended Jan. 20, 2006, effective July 1, 2006. Amended and effective on an emergency basis Sept. 26, 2008. Adopted on a permanent basis and amended Sept. 3, 2009, effective Jan. 1, 2010. Amended June 30, 2010, effective on an emergency basis July 29, 2010.
COMMITTEE COMMENT
See comment to Rule 55.
APPLICATION
<Rules 9 through 35 shall apply to cases in which the offense occurred on or after January 1, 2001; Rules 36 through 66 shall apply to cases filed on or after January 1, 2001; and, Rules 67 through 87 shall apply to actions commenced on or after January 1, 2001.>
HISTORICAL NOTES
[Editor's Note] It was further ordered in the January 26, 2004 order that the changes shall be circulated for public comment, and that the comments shall be filed in the Supreme Court Clerk's Office on or before April 2, 2004. Approved June 8, 2004 on a permanent basis.
17B A. R. S. Juv. Ct. Rules of Proc., Rule 56, AZ ST JUV CT Rule 56
Current with amendments received through 5/15/11
Juv. Ct. R.P.
57
17B A.R.S. Juv.Ct.Rules of Proc., Rule 57
Arizona Revised Statutes Annotated Currentness
Rules of Procedure for the Juvenile Court (Refs & Annos)
Part III. Dependency, Guardianship and Termination of Parental Rights
3. Dependency
Rule 57. Provision of Reunification Services Hearing
A. Purpose. Services to the child and the parent designed to facilitate the reunification of the family are not required if the court, after hearing, finds the existence of certain aggravating circumstances, as set forth by law.
B. Procedure. The court shall hear evidence concerning whether reunification services are required and may consider evidence as set forth in Rule 56(D).
C. Findings and Orders. All findings shall be in writing, in the form of a minute entry or order. If the court finds, by clear and convincing evidence, that reunification efforts are not required, the court shall:
1. Set forth the specific factual basis for its findings;
2. Order an appropriate case plan into effect and enter orders as necessary to achieve the case plan;
3. Enter orders concerning the placement and custody of the child;
4. Set a permanency hearing, as required by law;
5. Address the parent, guardian or Indian custodian in open court and advise the parent, guardian or Indian custodian that failure to attend further proceedings without good cause shown may result in the termination of parental rights or the establishment of a permanent guardianship of the child, based upon the record and evidence presented. The court shall advise the parent, guardian or Indian custodian that the hearings may go forward in the absence of the parent, guardian or Indian custodian. The court shall make specific findings that it advised the parent, guardian or Indian custodian of the consequences of failure to attend subsequent proceedings. The court may provide the parent, guardian or Indian custodian with a copy of Form 1, request that the parent, guardian or Indian custodian sign and return a copy of the Form, and note on the record that the Form was provided;
6. If the Indian Child Welfare Act applies, the court shall make findings pursuant to the standards and burdens of proof as required by the Act; including whether placement of the Indian child is in accordance with Section 1915 of the Act or whether there is good cause to deviate from the preferences; and
7. Enter any other orders as may be appropriate or required by law.
CREDIT(S)
Added Oct. 27, 2000, effective Jan. 1, 2001. Amended on emergency basis effective Jan. 31, 2002. Adopted in final form and amended, effective May 31, 2002; amended Sept. 3, 2009, effective Jan. 1, 2010.
COMMITTEE COMMENT
In cases involving Indian children, the discontinuation of services may adversely impact any future attempt to terminate parental rights. The Indian Child Welfare Act requires that prior to terminating parental rights, the court must be satisfied that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proven unsuccessful.
APPLICATION
<Rules 9 through 35 shall apply to cases in which the offense occurred on or after January 1, 2001; Rules 36 through 66 shall apply to cases filed on or after January 1, 2001; and, Rules 67 through 87 shall apply to actions commenced on or after January 1, 2001.>
17B A. R. S. Juv. Ct. Rules of Proc., Rule 57, AZ ST JUV CT Rule 57
Current with amendments received through 5/15/11
Juv. Ct. R.P.
58
17B A.R.S. Juv.Ct.Rules of Proc., Rule 58
Arizona Revised Statutes Annotated Currentness
Rules of Procedure for the Juvenile Court (Refs & Annos)
Part III. Dependency, Guardianship and Termination of Parental Rights
3. Dependency
Rule 58. Review Hearing
A. Purpose. The court shall conduct review hearings, as provided by law, in order to review the progress of the parties in achieving the case plan goals and determine whether the child continues to be dependent.
B. Notice.
1. Right to participate. At a proceeding to review the disposition orders of the court, the court shall provide the following persons notices of the review and the right to participate in the proceeding and any future proceedings:
a. The authorized agency charged with the child's care and custody.
b. Any foster parents in whose home the child resided within the last six months or resides at present, except for those foster parents who maintain a receiving foster home where the child has resided for ten days or less. The petitioner shall provide the court with the names and addresses of all foster parents who are entitled to notice pursuant to statute.
c. A shelter care facility or receiving foster home where the child resides or has resided within the last six months for more than thirty days. The petitioner shall provide the court with the names and addresses of all shelter care facilities and receiving foster homes that are entitled to notice pursuant to this paragraph.
d. The child's parent or guardian unless the parental rights of that parent or guardian have been terminated by court action or unless the parent has relinquished rights to the child to an agency or has consented to the adoption of the child as provided in A.R.S. § 8-107.
e. The child, if twelve years of age or older.
f. The child's relative, as defined in A.R.S. § 8-501, if that relative files a written notice of right of participation with the court.
g. A person permitted by the court to intervene as a party in the dependency proceeding.
h. A physical custodian of the child within the preceding six months.
i. Any person who has filed a petition to adopt or who has physical custody pursuant to a court order in a foster-adoptive placement.
j. Any other person as the court may direct.
2. Sibling information exchange program. If the court finds that a child is no longer dependent, before it dismisses the proceeding the court shall provide notice of the sibling information exchange program to the following:
a. An adult who is the former dependent child in the proceeding for whom the periodic review hearing is held.
b. A parent or guardian with legal custody of the former dependent child for whom the periodic review hearing is held.
C. Reports. The petitioner shall provide a report to the court and the parties at least fifteen (15) days prior to the hearing which shall address:
1. The placement of the child;
2. The services being provided to the child and family;
3. The progress the parties have made in achieving the case plan goals; and
4. Whether the child continues to be dependent.
D. Contested Issues Any party seeking an evidentiary hearing on any issue shall file a motion requesting that the matter be set for a contested hearing. The motion shall identify the issues to be litigated, the names and addresses of all witnesses and the estimated time the parties will need to present evidence. The court may reset the matter or proceed with the hearing as scheduled.
E. Procedure.
1. Absent any objection by a party, the court may consider the oral or written reports of the parties, documents previously entered into evidence at prior proceedings, documents agreed upon by the parties and any other reports, pursuant to Rule 45; and
2. All documents which the parties wish the court to consider as evidence shall be marked and admitted prior to the conclusion of the hearing.
3. The court shall address the recommendations of the Foster Care Review Board on the record, as provided by law.
4. At the first periodic review hearing, the court shall consider whether a parent of a child who is under three years of age at the time of removal has substantially neglected or willfully refused to participate in reunification services offered by the department.
F. Findings and Orders. All findings and orders shall be in the form of a signed order or contained in a minute entry. At the conclusion of the hearing, the court shall:
1. Dismiss the petition and return the child to the parent, guardian or Indian custodian if the court finds the child is not dependent; or
2. Make specific findings of fact that the child continues to be dependent; and
3. Enter appropriate orders concerning placement and custody of the child and services to be provided to the family;
4. Set a review hearing within the time as provided by law;
5. Set a permanency hearing not more than twelve (12) months from the date the child was removed from the home;
6. Address the parent, guardian or Indian custodian in open court and advise the parent, guardian or Indian custodian that failure to attend further proceedings without good cause shown and failure to participate in reunification services, if appropriate, may result in the termination of parental rights or the establishment of a permanent guardianship of the child, based upon the record and evidence presented. The court shall advise the parent, guardian or Indian custodian that the hearings may go forward in the absence of the parent, guardian or Indian custodian. The court shall make specific findings that it advised the parent, guardian or Indian custodian of the consequences of failure to attend subsequent proceedings and participate in reunification services. The court may provide the parent, guardian or Indian custodian with a copy of Form 1, request that the parent, guardian or Indian custodian sign and return a copy of the Form, and note on the record that the Form was provided;
7. If the Indian Child Welfare Act applies, the court shall make findings pursuant to the standards and burdens of proof as required by the Act, including whether placement of the Indian child is in accordance with Section 1915 of the Act or whether there is good cause to deviate from the preferences; and
8. Make findings and enter any other orders as may be appropriate or required by law.
CREDIT(S)
Added Oct. 27, 2000, effective Jan. 1, 2001. Amended on emergency basis effective Jan. 31, 2002. Adopted in final form, effective May 31, 2002. Amended Jan. 20, 2006, effective July 1, 2006. Amended and effective on an emergency basis Sept. 26, 2008. Adopted on a permanent basis and amended Sept. 3, 2009, effective Jan. 1, 2010. Amended and effective on an emergency basis Sept. 30, 2009. Amended and effective on a permanent basis, Sept. 2, 2010.
APPLICATION
<Rules 9 through 35 shall apply to cases in which the offense occurred on or after January 1, 2001; Rules 36 through 66 shall apply to cases filed on or after January 1, 2001; and, Rules 67 through 87 shall apply to actions commenced on or after January 1, 2001.>
17B A. R. S. Juv. Ct. Rules of Proc., Rule 58, AZ ST JUV CT Rule 58
Current with amendments received through 5/15/11
Juv. Ct. R.P.
59
17B A.R.S. Juv.Ct.Rules of Proc., Rule 59
Arizona Revised Statutes Annotated Currentness
Rules of Procedure for the Juvenile Court (Refs & Annos)
Part III. Dependency, Guardianship and Termination of Parental Rights
3. Dependency
Rule 59. Return of the Child
A. Purpose. At any time after the temporary custody hearing, a parent, guardian, or Indian custodian may file a motion with the court requesting return of the child to the custody of the parent, guardian or Indian custodian. The court shall set a hearing to determine whether return of the child would create a substantial risk of harm to the child's physical, mental or emotional health or safety.
B. Time Limits. A hearing shall be set within thirty (30) days of the request for return of the child.
C. Reports. The petitioner shall file a report with the court, not less than fifteen (15) days prior to the hearing and shall provide copies to all parties. The report shall address the following:
1. The current case plan and goals of the case plan;
2. The parent, guardian or Indian custodian's compliance with the case plan; and
3. The petitioner's opinion as to whether return of the child to the parent, guardian or Indian custodian would create substantial risk of harm to the child's physical, mental, or emotional health or safety.
D. Procedure. The court shall consider evidence from the parties, in the form of testimony or documents admitted into evidence, which may include hearsay, in whole or in part, to determine whether the child can be returned to the parent, guardian or Indian custodian. The court shall consider the failure of the parent, guardian, or Indian custodian to comply with the terms of the case plan as evidence that return of the child would create a substantial risk of harm to the child.
E. Findings and Orders. All findings and orders shall be in the form of a signed order or contained in a minute entry. The court shall:
1. Return the child to the parent, guardian or Indian custodian if the court finds, by a preponderance of the evidence, that return of the child would not create a substantial risk of harm to the child's physical, mental or emotional health or safety; or
2. Affirm prior custody orders; and
3. Set additional hearings as required by law;
4. Address the parent, guardian or Indian custodian in open court and advise the parent, guardian or Indian custodian that failure to attend further proceedings without good cause shown and failure to participate in reunification services may result in the termination of parental rights or the establishment of a permanent guardianship of the child, based upon the record and evidence presented. The court shall advise the parent, guardian or Indian custodian that the hearings may go forward in the absence of the parent, guardian or Indian custodian. The court shall make specific findings that it advised the parent, guardian or Indian custodian of the consequences of failure to attend subsequent proceedings and participate in reunification services. The court may provide the parent, guardian or Indian custodian with a copy of Form 1, request that the parent, guardian or Indian custodian sign and return a copy of the Form, and note on the record that the Form was provided;
5. If the Indian Child Welfare Act applies, the court shall make findings pursuant to the standards and burdens of proof as required by the Act, including whether placement of the Indian child is in accordance with Section 1915 of the Act or whether there is good cause to deviate from the preferences; and
6. Make findings and enter any other orders as may be appropriate or required by law.
CREDIT(S)
Added Oct. 27, 2000, effective Jan. 1, 2001. Amended on emergency basis effective Jan. 31, 2002. Adopted in final form and amended, effective May 31, 2002. Amended Jan. 20, 2006, effective July 1, 2006; Sept. 3, 2009, effective Jan. 1, 2010.
APPLICATION
<Rules 9 through 35 shall apply to cases in which the offense occurred on or after January 1, 2001; Rules 36 through 66 shall apply to cases filed on or after January 1, 2001; and, Rules 67 through 87 shall apply to actions commenced on or after January 1, 2001.>
17B A. R. S. Juv. Ct. Rules of Proc., Rule 59, AZ ST JUV CT Rule 59
Current with amendments received through 5/15/11
Juv. Ct. R.P. 60
17B A.R.S. Juv.Ct.Rules of Proc., Rule 60 Arizona Revised Statutes Annotated Currentness
Rules of Procedure for the Juvenile Court (Refs & Annos)
Part III. Dependency, Guardianship and Termination of Parental Rights
3. Dependency
Rule 60. Permanency Hearing
A. Purpose. At the permanency hearing the court shall determine the future permanent legal status for the child and shall enter such orders as may be necessary to accomplish the plan within a specific time frame.
B. Consolidation of Hearings. On a motion of any party, or the court's own motion, the court may order that a motion or petition to terminate parental rights or to establish a permanent guardianship be filed prior to the permanency hearing and may consolidate the permanency hearing and the initial termination or guardianship hearing, so long as the permanency hearing is held within twelve (12) months of the child's removal and all of the following are true:
1. The child was removed from the custody of the parent, guardian or Indian custodian;
2. The parent, guardian or Indian custodian has been offered reunification services;
3. The child has not been returned to the parent, guardian or Indian custodian; and
4. A party is requesting the termination of parental rights or the establishment of a permanent guardianship.
C. Time Limits. The permanency hearing shall be held:
1. Within thirty (30) days of the disposition hearing, if the court did not order reunification services; or
2. Within six months of the removal of a child under three years from the child's home.
3. Within twelve (12) months of the child's removal from the home, unless otherwise permitted by law.
D. Procedure. At the permanency hearing the court shall consider evidence from the parties, in the form of testimony or documents admitted into evidence, which may include hearsay, in whole or in part, and age-appropriate consultation with the child, in order to determine what permanent legal status is appropriate for the child. The court shall consider the final plan prepared by the Department of Economic Security, pursuant to prior order of the court.
E. Findings and Orders. All findings and orders shall be in the form of a signed order or contained in a minute entry. The court shall make findings based upon the evidence presented and shall:
1. Determine the appropriate permanent plan for the child, make the determination required by Rule 47.1 and order the petitioner to accomplish the plan within a specific time frame;
2. Set a review hearing within the time required by law;
3. Order the petitioner or the child's attorney or guardian ad litem to file a motion or petition to terminate parental rights or to establish a permanent guardianship within ten (10) days after the permanency hearing if the court determines that termination of parental rights or the establishment of a permanent guardianship is clearly in the best interests of the child and appoint counsel for the parent as provided in Rule 38B;
4. Address the parent, guardian or Indian custodian in open court and advise the parent, guardian or Indian custodian that failure to attend further proceedings without good cause shown and failure to participate in reunification services, if appropriate, may result in the termination of parental rights or the establishment of a permanent guardianship of the child, based upon the record and evidence presented. The court shall advise the parent, guardian or Indian custodian that the hearings may go forward in the absence of the parent, guardian or Indian custodian. The court shall make specific findings that it advised the parent, guardian or Indian custodian of the consequences of failure to attend subsequent proceedings and participate in reunification services. The court may provide the parent, guardian or Indian custodian with a copy of Form 2 (if the permanent plan is guardianship) or Form 3 (if the permanent plan is termination of parental rights), request that the parent, guardian or Indian custodian sign and return a copy of the Form, and note on the record that the Form was provided;
5. If the Indian Child Welfare Act applies, the court shall make findings pursuant to the standards and burdens of proof as required by the Act; including whether placement of the Indian child is in accordance with Section 1915 of the Act or whether there is good cause to deviate from the preferences; and
6. If a child is in an out-of-state placement the court shall make a finding as to whether the placement continues to be appropriate and in the child's best interest.
7. Make findings and enter any other orders as may be appropriate or required by law.
CREDIT(S)
Added Oct. 27, 2000, effective Jan. 1, 2001. Amended on emergency basis effective Jan. 31, 2002. Adopted in final form, effective May 31, 2002. Amended and effective on an emergency basis Jan. 26, 2004. Amended and effective June 8, 2004. Amended Jan. 20, 2006, effective July 1, 2006; May 30, 2007, effective June 15, 2007. Adopted in final form effective Sept. 5, 2007. Amended and effective on an emergency basis Sept. 26, 2008. Adopted on a permanent basis and amended Sept. 3, 2009, effective Jan. 1, 2010.
APPLICATION
<Rules 9 through 35 shall apply to cases in which the offense occurred on or after January 1, 2001; Rules 36 through 66 shall apply to cases filed on or after January 1, 2001; and, Rules 67 through 87 shall apply to actions commenced on or after January 1, 2001.>
HISTORICAL NOTES
[Editor's Note] It was further ordered in the January 26, 2004 order that the changes shall be circulated for public comment, and that the comments shall be filed in the Supreme Court Clerk's Office on or before April 2, 2004. Approved June 8, 2004 on a permanent basis.
[Editor's Note] It was further ordered in the May 30, 2007 order that the amendment was open for comment in accordance with Rules of the Supreme Court, Rule 28 (D) until August 1, 2007.
17B A. R. S. Juv. Ct. Rules of Proc., Rule 60, AZ ST JUV CT Rule 60
Current with amendments received through 5/15/11
Juv. Ct. R.P.
61
17B A.R.S. Juv.Ct.Rules of Proc., Rule 61
Arizona Revised Statutes Annotated Currentness
Rules of Procedure for the Juvenile Court (Refs & Annos)
Part III. Dependency, Guardianship and Termination of Parental Rights
4. Permanent Guardianship and Successor Permanent Guardianship
Rule 61. Motion, Notice of Hearing, Service of Process and Orders for Permanent Guardianship
A. Motion. If the court determines that the establishment of a permanent guardianship is in the best interests of a dependent child, the court shall order that a motion for guardianship be filed by the Department of Economic Security or by the child's attorney or guardian ad litem within ten (10) days of the permanency hearing. The motion shall contain all information required by law.
B. Notice of Hearing. A notice of hearing shall accompany the motion for permanent guardianship and shall advise the parent, guardian or Indian custodian of the location, date and time of the initial guardianship hearing. In addition to the information required by law, the notice of hearing shall advise the parent, guardian or Indian custodian that failure to appear without good cause shown may result in a finding that the parent, guardian or Indian custodian has waived legal rights and is deemed to have admitted the allegations in the motion for guardianship. The notice shall advise the parent, guardian or Indian custodian that the hearing may go forward in the absence of the parent, guardian or Indian custodian and may result in the establishment of a permanent guardianship based upon the record and evidence presented. In addition to service of the notice of hearing upon the parties, a copy of the notice of hearing shall also be provided to the following persons:
1. The child's current physical custodian;
2. Any foster parent with whom the child has resided within six (6) months prior to the date of the hearing;
3. The prospective guardian if the guardian is not the current physical custodian; and
4. Any other person the court orders to be provided with the notice of hearing.
C. Service. The motion for guardianship and notice of hearing shall be served by the moving party upon the parties and any other person as provided by law, pursuant to Rule 5(c), Ariz. R. Civ. Pro. If the motion alleges or the court has reason to believe the child at issue is an Indian child as defined by the Indian Child Welfare Act, in addition to service of process as required by this rule, notification shall be given to the parent, Indian custodian and child's tribe. Notice shall be provided by registered mail with return receipt requested. If the identity or location of the parent or Indian custodian cannot be determined, notice shall be given to the Secretary of the Interior by registered mail and the Secretary of the Interior shall have fifteen (15) days after receipt to provide the requisite notice to the parent or Indian custodian and the tribe. The notice shall advise the parent or Indian custodian and the tribe of their right to intervene. No hearing shall be held until at least ten (10) days after receipt of notice by the parent or Indian custodian and the tribe or the Secretary. The court shall grant up to twenty (20) additional days to prepare for the hearing if a request is made by the parent or Indian custodian or the tribe.
1. Waiver. The parent, Indian custodian or the child's tribe may waive the ten (10) day notice requirement for purposes of proceeding with the initial guardianship hearing within the time limit as provided by state law.
D. Orders. Upon the filing of a motion for guardianship, the court shall order that the Arizona Department of Economic Security, an agency or a person designated as an officer of the court to conduct an investigation and prepare a report addressing whether the prospective guardian is a fit and proper person to become guardian of the child and whether it is in the best interests of the child to grant the guardianship. If the child is an Indian child, the report shall address whether the prospective guardian falls within the placement preferences as required by the Act or whether good cause exists to deviate from the placement preferences. A copy of the report shall be provided to the parties and the court ten (10) days prior to the initial guardianship hearing. The court may enter any other orders, pending the hearing, as the court determines to be in the best interests of the child.
CREDIT(S)
Added Oct. 27, 2000, effective Jan. 1, 2001. Amended and effective on an emergency basis Sept. 26, 2008. Adopted on a permanent basis Sept. 3, 2009, effective Jan. 1, 2010.
17B A. R. S. Juv. Ct. Rules of Proc., Rule 61, AZ ST JUV CT Rule 61
Current with amendments received through 5/15/11
Juv. Ct. R.P.
62
17B A.R.S. Juv.Ct.Rules of Proc., Rule 62 Arizona Revised Statutes Annotated Currentness
Rules of Procedure for the Juvenile Court (Refs & Annos)
Part III. Dependency, Guardianship and Termination of Parental Rights
4. Permanent Guardianship and Successor Permanent Guardianship
Rule 62. Initial Guardianship Hearing
A. Purpose. At the initial guardianship hearing, the court shall determine whether service has been completed, whether notice of the hearing has been provided to those persons identified pursuant to Rule 61(B) and the parent or Indian custodian and the child's tribe and whether the parent, guardian or Indian custodian admits, denies or does not contest the allegations contained in the motion for guardianship.
B. Time Limits. If a motion for permanent guardianship is filed, the initial hearing shall be held within thirty (30) days of the permanency hearing.
C. Procedure. At the initial hearing the court shall;
1. Inquire if any party has reason to believe that the child at issue is subject to the Indian Child Welfare Act;
2. Appoint counsel pursuant to Rule 38(B), unless counsel had previously been appointed;
3. Appoint counsel for the child if a guardian ad litem has not been appointed;
4. Determine whether service of process has been completed or waived as to each party pursuant to Rule 61 and whether notice of the hearing has been provided to those persons identified in Rule 61(B), in addition to the parent, Indian custodian and the child's tribe;
5. Determine whether the investigation and report ordered by the court has been completed and provided to the parties;
6. Advise the parent, guardian or Indian custodian of their rights as follows:
a. The right to counsel, including court appointed counsel if the parent, guardian or Indian custodian is indigent;
b. The right to cross examine all witnesses who are called to testify against the parent, guardian or Indian custodian;
c. The right to trial by the court on the guardianship motion or petition; and
d. The right to use the process of the court to compel the attendance of witnesses.
7. Determine whether the parent, guardian or Indian custodian admits, denies or does not contest the allegations contained in the motion or petition for guardianship.
a. Admission/No Contest. If the parent, guardian or Indian custodian admits or does not contest the allegations, the court shall proceed with the guardianship adjudication hearing and enter findings and orders, pursuant to Rule 63.
b. Denial. If a motion for guardianship was filed and the parent, guardian or Indian custodian denies the allegations, the court shall set the matter for trial within ninety (90) days of the permanency hearing. The court may schedule a settlement conference, a pretrial conference or mediation, if appropriate.
c. Failure to Appear. If the parent, guardian or Indian custodian fails to appear at the initial guardianship hearing without good cause shown, and the court finds the parent, guardian or Indian custodian had notice of the hearing, was properly served pursuant to Rule 61, and had been previously admonished regarding the consequences of failure to appear, including a warning that the hearing could go forward in the absence of the parent, guardian or Indian custodian and that failure to appear may constitute a waiver of rights and an admission to the allegations contained in the guardianship motion, the court may proceed with the adjudication of guardianship based upon the record and evidence presented if the moving party has proven grounds upon which to establish a guardianship. The court shall enter its findings and orders pursuant to Rule 63.
8. Determine how a verbatim record of the guardianship adjudication hearing will be made.
D. Findings and Orders. All findings and orders shall be in the form of a signed order or contained in a minute entry. At the conclusion of the hearing, the court shall:
1. Enter findings as to notification and service upon the parties and those persons designated to receive notice and the court's jurisdiction over the subject matter and persons before the court;
2. Set a continued initial guardianship hearing as to any party who was not served and did not appear;
3. The court may schedule a settlement conference, status conference, pretrial conference or mediation as deemed appropriate;
4. Address the parent, guardian or Indian custodian in open court and advise the parent, guardian or Indian custodian that failure to appear at the guardianship pre-trial conference, settlement conference, or guardianship adjudication hearing, without good cause shown, may result in a finding that the parent, guardian or Indian custodian has waived legal rights and is deemed to have admitted the allegations in the motion for guardianship. The court shall advise the parent, guardian or Indian custodian that the guardianship adjudication hearing may go forward in the absence of the parent, guardian or Indian custodian and may result in the establishment of a permanent guardianship based upon the record and evidence presented. The court shall make specific findings that it advised the parent, guardian or Indian custodian of the consequences of failure to attend subsequent proceedings. The court may provide the parent, guardian or Indian custodian with a copy of Form 2, request that the parent, guardian or Indian custodian sign and return a copy of the Form, and note on the record that the Form was provided;
5. If the Indian Child Welfare Act applies, the court shall make findings pursuant to the standards and burdens of proof as required by the Act, including whether placement of the Indian child is in accordance with Section 1915 of the Act or whether there is good cause to deviate from the preferences; and
6. Make findings and enter any other orders as may be appropriate or required by law.
CREDIT(S)
Added Oct. 27, 2000, effective Jan. 1, 2001. Amended Jan. 20, 2006, effective July 1, 2006; Sept. 18, 2006, effective Jan. 1, 2007; Sept. 3, 2009, effective Jan. 1, 2010.
COMMITTEE COMMENT
It is the recommendation of the committee that, in addition to the admonition set forth in this rule, the court should consider providing the parent, guardian or Indian custodian with a separate written copy of the admonition in order to protect the due process rights of the parent, guardian or Indian custodian. See Form 2.
APPLICATION
<Rules 9 through 35 shall apply to cases in which the offense occurred on or after January 1, 2001; Rules 36 through 66 shall apply to cases filed on or after January 1, 2001; and, Rules 67 through 87 shall apply to actions commenced on or after January 1, 2001.>
17B A. R. S. Juv. Ct. Rules of Proc., Rule 62, AZ ST JUV CT Rule 62
Current with amendments received through 5/15/11
Juv. Ct. R.P.
63
17B A.R.S. Juv.Ct.Rules of Proc., Rule 63
Arizona Revised Statutes Annotated Currentness
Rules of Procedure for the Juvenile Court (Refs & Annos)
Part III. Dependency, Guardianship and Termination of Parental Rights
4. Permanent Guardianship and Successor Permanent Guardianship
Rule 63. Guardianship Adjudication Hearing
A. Purpose. The court shall conduct the guardianship adjudication hearing for the purpose of determining whether the prospective guardian is a fit and proper person to become the permanent guardian of the child and whether guardianship is in the best interests of the child.
B. Time Limits. The guardianship adjudication hearing shall be set no later than ninety (90) days after the permanency hearing. The court may continue the hearing beyond the ninety (90) day time limit for a period of thirty (30) days if it finds that the continuance is necessary for the full, fair and proper presentation of evidence and the best interests of the child would not be adversely affected. Any continuance beyond thirty (30) days shall only be granted upon a finding of extraordinary circumstances. Extraordinary circumstances include but are not limited to acts or omissions that are unforseen [FN1] or unavoidable. Any party requesting a continuance shall file a motion for extension of time, setting forth the reasons why extraordinary circumstances exist. The motion shall be filed within five (5) days of the discovery that extraordinary circumstances exist. The court's finding of extraordinary circumstances shall be in writing and shall set forth the factual basis for the continuance.
C. Burden of Proof. The moving party has the burden of proving the allegations contained in the motion by clear and convincing evidence or, in the case of an Indian child, beyond a reasonable doubt. In addition, if the child is an Indian child, the moving party must prove, beyond a reasonable doubt, including testimony from a qualified expert witness, that continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child. The petitioner must satisfy the court that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that those efforts have proven unsuccessful.
D. Procedure. The presentation of evidence at the guardianship adjudication hearing shall be as informal as the requirements of due process and fairness permit and shall generally proceed in a manner similar to the trial of a civil action before the court without a jury.
1. Admission/No Contest. The parent, guardian or Indian custodian may waive the right to trial on the allegations contained in the motion for guardianship by admitting or not contesting the allegations. An admission or plea of no contest may be oral or in writing. In accepting an admission or plea of no contest, the court shall:
a. Determine whether the party understands the rights being waived;
b. Determine whether the admission or plea of no contest is knowingly, intelligently and voluntarily made;
c. Determine whether a factual basis exists to support the establishment of a guardianship; and
d. Proceed with entering the findings and orders as set forth in subsection (F) of this rule.
2. Failure to Appear. If the court finds the parent, guardian or Indian custodian failed to appear at the guardianship adjudication hearing without good cause shown, had notice of the hearing, was properly served pursuant to Rule 61 and had been previously admonished regarding the consequences of failure to appear, including a warning that the hearing could go forward in the absence of the parent, guardian or Indian custodian that failure to appear may constitute a waiver of rights and an admission to the allegations contained in the guardianship motion, the court may grant the guardianship based upon the record and evidence presented if the moving party has proven grounds upon which to establish a guardianship. The court shall enter its findings and orders pursuant to subsection (F) of this rule.
3. The court shall give primary consideration to the physical, mental and emotional needs of the child in determining whether to grant the motion for guardianship and shall appoint as guardian the person nominated as guardian by a child twelve (12) years of age or older, unless the court finds it would not be in the child's best interest to do so. The court shall consider the child's objection to the appointment of the person nominated as permanent guardian.
E. Reports. In addition to reports admitted into evidence pursuant to Rule 45, the court shall admit into evidence and consider the investigative report prepared pursuant to Rule 61(D).
F. Findings and Orders. All findings and orders shall be in the form of a signed order or contained in a minute entry. At the conclusion of the hearing the court shall:
1. Enter findings as to the court's jurisdiction over the subject matter and persons before the court;
2. If the moving party has met its burden of proof, as provided by law, the court shall:
a. Make specific findings of fact in support of the establishment of a guardianship and appoint a permanent guardian;
b. Enter appropriate orders governing the powers and duties of the guardian as set forth in A.R.S. 14-5209;
c. Enter appropriate visitation orders. The court may order the parent to contribute to the support of the child, if appropriate; and
d. Set an annual review and order the preparation of a report, as required by law; and dismiss the dependency action.
3. If the moving party fails to meet the burden of proof, the court shall deny the guardianship motion, set a review hearing and order the parties to submit a revised case plan prior to the hearing;
4. If the Indian Child Welfare Act applies, the court shall make findings pursuant to the standards and burdens of proof as required by the Act, including whether placement of the Indian child is in accordance with Section 1915 of the Act or whether there is good cause to deviate from the preferences;
5. Make findings and enter any other orders as may be appropriate or required by law; and
6. At the guardianship hearing, or by notice filed after the appointment of a permanent guardian or a successor permanent guardian pursuant to A.R.S. § 8- 874, the guardian may advise the court as to the identity and contact information of potential successor permanent guardians.
CREDIT(S)
Added Oct. 27, 2000, effective Jan. 1, 2001. Amended Jan. 20, 2006, effective July 1, 2006. Amended and effective on an emergency basis Sept. 26, 2008. Adopted on a permanent basis Sept. 3, 2009, effective January 1, 2010.
[FN1] So in original. Probably should read "unforeseen".
COMMITTEE COMMENT
Although the Indian Child Welfare Act does not specifically reference guardianship proceedings, affording the Indian parent the same protections afforded in termination of parental rights proceedings is consistent with the intent of the Act. While states are required to comply with the requirements of the Act, there is nothing to preclude states from affording Indian families greater protection than that provided by the Act.
APPLICATION
<Rules 9 through 35 shall apply to cases in which the offense occurred on or after January 1, 2001; Rules 36 through 66 shall apply to cases filed on or after January 1, 2001; and, Rules 67 through 87 shall apply to actions commenced on or after January 1, 2001.>
17B A. R. S. Juv. Ct. Rules of Proc., Rule 63, AZ ST JUV CT Rule 63
Current with amendments received through 5/15/11
Juv. Ct. R.P.
64
Arizona
Revised Statutes
Rules
of Procedure for the Juvenile Court
Part
III. Dependency, Guardianship and Termination of Parental Rights
5.
Termination of Parental Rights
Rule
64. Motion, Petition, Notice of Hearing and Service of Process and Orders.
A.
Motion for Termination of Parental Rights. If the court determines that termination of parental rights
is in the best interests of a dependent child, the
court shall order that a motion for termination of parental
rights be filed by the Department of Economic Security or
the child's attorney or guardian ad litem within ten (10)
days of the permanency hearing. The motion shall allege
the grounds for termination of parental rights as provided by
law and shall state whether the child is an Indian
child as defined by the Indian Child Welfare
Act.
B.
Petition for Termination of Parental Rights. If the child at issue is not a dependent
child or is a dependent child who was the subject
of a dependency petition filed prior to July 1, 1998,
the petitioner shall file a petition for termination of parental
rights, pursuant to A.R.S. 8-534 and shall state whether the
child is an Indian child as defined by the Indian Child Welfare
Act. Nothing in this rule shall preclude the filing
of a petition in those cases where the child was
the subject of a dependency petition filed after July 1,
1998.
C.
Notice of Hearing. A notice of hearing shall accompany the motion or
petition for termination of parental rights and shall advise the
parent, guardian or Indian custodian of the location, date and
time of the initial termination hearing. In addition to
the information required by law, the notice of hearing shall
advise the parent, guardian or Indian custodian that failure to
appear at the initial hearing, pretrial conference, status conference or
termination adjudication hearing, without good cause, may result in a
finding that the parent, guardian or Indian custodian has waived
legal rights, and is deemed to have admitted the allegations
in the motion or petition for termination. The notice
shall advise the parent, guardian or Indian custodian that the
hearings may go forward in the absence of the parent, guardian
or Indian custodian and may result in the termination of
parental rights based upon the record and evidence presented.
D.
Service. If the motion or petition alleges or the court
has reason to believe the child at issue is an
Indian child as defined by the Indian Child Welfare
Act, in addition to service of process as required by
this rule, notification shall be given to the parent, Indian
custodian and the child's tribe. Notice shall be provided
by registered mail with return receipt requested. If the
identity or location of the parent or Indian custodian cannot
be determined, notice shall be given to the Secretary of
the Interior by registered mail and the Secretary of the
Interior shall have fifteen (15) days after receipt to provide
the requisite notice to the parent or Indian custodian and
the tribe.
The
notice shall advise the parent or Indian custodian and the
tribe of their right to intervene. No hearing shall
be held until at least ten (10) days after receipt
of notice by the parent or Indian custodian and the
tribe or the Secretary. The court shall grant up
to twenty (20) additional days to prepare for
the hearing if a request is made by the parent
or Indian custodian or the tribe.
1.
Waiver. The parent, Indian custodian or the child's tribe may
waive the ten (10) day notice requirement for purposes of
proceeding with the initial termination hearing within the time limit
as provided by state law.
2.
Motion. The motion for termination and notice of hearing shall
be served by the moving party upon the parties and
any other person as provided by law, pursuant to Rule
5(c), Ariz. R. Civ. P. at least ten (10) days
prior to the initial termination hearing.
3.
Petition. The petition for termination of parental rights and notice
of hearing shall be served by the petitioner upon the
parties and any other person as provided by law, pursuant
to A.R.S. 8-535, in the manner provided for in Rules
4.1 or 4.2, Ariz. R. Civ. P.
E.
Orders. The court may enter orders, pending the hearing, as
the court determines to be in the best interests of
the child.
CREDIT(S)
Added
Oct. 27, 2000, effective Jan. 1, 2001. Amended and
effective on an emergency basis Jan. 26, 2004. Amended
Dec. 8, 2006, effective Jan. 1, 2007.
Juv. Ct. R.P.
65
17B A.R.S. Juv.Ct.Rules of Proc. ,Rule 65 Arizona Revised Statutes Annotated Currentness
Rules of Procedure for the Juvenile Court (Refs & Annos)
Part III. Dependency, Guardianship and Termination of Parental Rights
5. Termination of Parental Rights
Rule 65. Initial Termination Hearing
A. Purpose. At the initial termination hearing, the court shall determine whether service has been completed and whether the parent, guardian or Indian custodian admits, denies or does not contest the allegations contained in the motion or petition for termination of parental rights.
B. Time Limits. If a motion for termination of parental rights is filed, the initial hearing shall be held within thirty (30) days of the permanency hearing. If a petition for termination is filed, the hearing shall be held no sooner than ten (10) days following the completion of service.
C. Procedure. At the initial hearing the court shall:
1. Inquire if any party has reason to believe that the child at issue is subject to the Indian Child Welfare Act;
2. Appoint counsel pursuant to Rule 38(B); unless counsel had previously been appointed;
3. Appoint counsel for the child if a guardian ad litem has not been appointed;
4. Determine whether service of process has been completed, pursuant to Rule 64 or waived as to each party;
5. Advise the parent, guardian or Indian custodian of their rights as follows:
a. The right to counsel, including court appointed counsel if the parent, guardian or Indian custodian is indigent;
b. The right to cross examine all witnesses who are called to testify against the parent, guardian or Indian custodian;
c. The right to trial by the court on the termination motion or petition; and
d. The right to use the process of the court to compel the attendance of witnesses.
6. Determine whether the parent, guardian or Indian custodian admits, denies or does not contest the allegations contained in the motion or petition to terminate parental rights.
a. Admission/No contest. If the parent, guardian or Indian custodian admits or does not contest the allegations, the court shall proceed with the termination hearing and enter findings and orders, pursuant to Rule 66.
b. Denial. If a motion for termination of parental rights was filed and the parent, guardian or Indian custodian denies the allegations, the court shall set the matter for trial within ninety (90) days of the permanency hearing. The court may schedule a settlement conference, a pretrial conference or mediation, if appropriate. If a petition for termination was filed, the court may schedule mediation and shall set a pretrial conference or status conference.
c. Failure to Appear. If the parent, guardian or Indian custodian fails to appear at the initial termination hearing without good cause shown and the court finds the parent, guardian or Indian custodian had notice of the hearing, was properly served pursuant to Rule 64 and had been previously admonished regarding the consequences of failure to appear, including a warning that the hearing could go forward in the absence of the parent, guardian or Indian custodian and that failure to appear may constitute a waiver of rights and an admission to the allegations contained in the termination motion or petition, the court may proceed with the adjudication of termination based upon the record and evidence presented if the moving party or petitioner has proven grounds upon which to terminate parental rights. The court shall enter its findings and orders pursuant to Rule 66.
7. Determine how a verbatim record of the termination adjudication hearing will be made.
D. Findings and Orders. All findings and orders shall be in the form of a signed order or contained in a minute entry. At the conclusion of the hearing, the court shall:
1. Enter findings as to notification and service upon the parties and the court's jurisdiction over the subject matter and persons before the court;
2. Set a continued initial termination hearing as to any party who was not served and did not appear;
3. Address the parent, guardian or Indian custodian in open court and advise the parent, guardian or Indian custodian that failure to appear at the pretrial conference, status conference or termination adjudication hearing, without good cause shown, may result in a finding that the parent, guardian or Indian custodian has waived legal rights, and is deemed to have admitted the allegations in the motion or petition for termination. The court shall advise the parent, guardian or Indian custodian that the termination adjudication hearing may go forward in the absence of the parent, guardian or Indian custodian and may result in the termination of parental rights based upon the record and evidence presented. The court shall make specific findings that it advised the parent, guardian or Indian custodian of the consequences of failure to attend subsequent proceedings. The court may provide the parent, guardian or Indian custodian with a copy of Form 3, request that the parent, guardian or Indian custodian sign and return a copy of the Form, and note on the record that the Form was provided;
4. If the Indian Child Welfare Act applies, the court shall make findings pursuant to the standards and burdens of proof as required by the Act, including whether placement of the Indian child is in accordance with Section 1915 of the Act or whether there is good cause to deviate from the preferences; and
5. Make findings and enter any other orders as may be appropriate or required by law.
CREDIT(S)
Added Oct. 27, 2000, effective Jan. 1, 2001. Amended and effective on an emergency basis Jan. 26, 2004. Amended and effective June 8, 2004. Amended Jan. 20, 2006, effective July 1, 2006; Sept. 18, 2006, effective Jan. 1, 2007; Dec. 8, 2006, effective Jan. 1, 2007; Sept. 3, 2009, effective Jan. 1, 2010.
COMMITTEE COMMENT
It is the recommendation of the committee that, in addition to the admonition set forth in this rule, the court should consider providing the parent, guardian or Indian custodian with a written copy of the admonition in order to protect the due process rights of the parent, guardian or Indian custodian. See FORM III.
APPLICATION
<Rules 9 through 35 shall apply to cases in which the offense occurred on or after January 1, 2001; Rules 36 through 66 shall apply to cases filed on or after January 1, 2001; and, Rules 67 through 87 shall apply to actions commenced on or after January 1, 2001.>
HISTORICAL NOTES
[Editor's Note] It was further ordered in the January 26, 2004 order that the changes shall be circulated for public comment, and that the comments shall be filed in the Supreme Court Clerk's Office on or before April 2, 2004. Approved June 8, 2004 on a permanent basis.
17B A. R. S. Juv. Ct. Rules of Proc., Rule 65, AZ ST JUV CT Rule 65
Current with amendments received through 5/15/11
Juv. Ct. R.P.
66
17B A.R.S. Juv.Ct.Rules of Proc., Rule 66 Arizona Revised Statutes Annotated Currentness
Rules of Procedure for the Juvenile Court (Refs & Annos)
Part III. Dependency, Guardianship and Termination of Parental Rights
5. Termination of Parental Rights
Rule 66. Termination Adjudication Hearing
A. Purpose. The court shall conduct an adjudicatory hearing in which the court determines whether the moving party or petitioner has met the burden of proving grounds upon which to terminate parental rights and whether termination is in the best interests of the child.
B. Time Limits. If a motion for termination of parental rights was filed, the termination adjudication hearing shall be held no later than ninety (90) days after the permanency hearing. The court may continue the hearing beyond the ninety (90) day time limit for a period thirty (30) days if it finds that the continuance is necessary for the full, fair and proper presentation of evidence, and the best interests of the child would not be adversely affected. Any continuance beyond thirty (30) days shall only be granted upon a finding of extraordinary circumstances. Extraordinary circumstances include, but are not limited to, acts or omissions that are unforseen [FN1] or unavoidable. Any party requesting a continuance shall file a motion for extension of time, setting forth the reasons why extraordinary circumstances exist. The motion shall be filed within five (5) days of the discovery that extraordinary circumstances exist. The court's finding of extraordinary circumstances shall be in writing and shall set forth the factual basis for the continuance.
C. Burden of Proof. The moving party or petitioner has the burden of proving the grounds for termination alleged in the motion or petition by clear and convincing evidence and that the termination would serve the child's best interests by a preponderance of the evidence. In addition, if the child is an Indian child, the moving party or petitioner must prove, beyond a reasonable doubt, including testimony from a qualified expert witness, that continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child. The moving party or petitioner must also satisfy the court that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that those efforts have proven unsuccessful.
D. Procedure. The presentation of evidence at the termination adjudication hearing shall be as informal as the requirements of due process and fairness permit and shall generally proceed in a manner similar to the trial of a civil action before the court without a jury.
1. Admission/No contest. The parent, guardian or Indian custodian may waive the right to trial on the allegations contained in the motion or petition for termination of parental rights by admitting or not contesting the allegations. An admission or plea of no contest may be oral or in writing. In accepting an admission or plea of no contest, the court shall:
a. Determine whether the party understands the rights being waived;
b. Determine whether the admission or plea of no contest is knowingly, intelligently and voluntarily made;
c. Determine whether a factual basis exists to support the termination of parental rights; and
d. Proceed with entering the findings and orders as set forth in subsection (F) of this rule.
2. Failure to Appear. If the court finds the parent, guardian or Indian custodian failed to appear at the termination adjudication hearing without good cause shown, had notice of the hearing, was properly served pursuant to Rule 64 and had been previously admonished regarding the consequences of failure to appear, including a warning that the hearing could go forward in the absence of the parent, guardian or Indian custodian and that failure to appear may constitute a waiver of rights, and an admission to the allegation contained in the motion or petition for termination, the court may terminate parental rights based upon the record and evidence presented if the moving party or petitioner has proven grounds upon which to terminate parental rights. The court shall enter its findings and orders pursuant to subsection (E) of this rule.
E. Termination Social Study. A social study prepared pursuant to A.R.S. 8- 536 or by order of the court is admissible as evidence unless a party has filed a notice of objection as required by Rule 44 (B)(2)(e) and (D)(2). If the court sustains any objections, the court may:
1. Admit the social study into evidence after redacting those portions to which objections were sustained; and
2. Allow the petitioner a reasonable opportunity to call additional witnesses to testify regarding the redacted portions of the social study.
F. Findings and Orders by the court. All findings and orders shall be in the form of a signed order or set forth in a signed minute entry. At the conclusion of the hearing the court shall:
1. Enter findings as to the court's jurisdiction over the subject matter and persons before the court;
2. If the moving party or petitioner has met its burden of proof, the court shall:
a. Make specific findings of fact in support of the termination of parental rights and grant the motion or petition for termination;
b. Appoint a guardian for the child or appoint a guardian for the child and vest legal custody in another person or authorized agency;
c. Enter orders for financial support of the child;
d. Set or reaffirm the dependency review hearing; and
e. If the Indian Child Welfare Act applies, the court shall make findings pursuant to the standards and burdens of proof as required by the Act, including whether placement of the Indian child is in accordance with Section 1915 of the Act or whether there is good cause to deviate from the preferences.
3. Deny the termination motion or petition if the moving party or petitioner did not meet its burden of proof, and order the parties to submit a revised case plan prior to the dependency review hearing.
CREDIT(S)
Added Oct. 27, 2000, effective Jan. 1, 2001. Amended and effective on an emergency basis Jan. 26, 2004. Amended Jan. 20, 2006, effective July 1, 2006; Dec. 8, 2006, effective Jan. 1, 2007; Sept. 3, 2009, effective Jan. 1, 2010.
[FN1] So in original. Probably should read "unforeseen".
APPLICATION
<Rules 9 through 35 shall apply to cases in which the offense occurred on or after January 1, 2001; Rules 36 through 66 shall apply to cases filed on or after January 1, 2001; and, Rules 67 through 87 shall apply to actions commenced on or after January 1, 2001.>
HISTORICAL NOTES
[Editor's Note] It was further ordered in the January 26, 2004 order that the changes shall be circulated for public comment, and that the comments shall be filed in the Supreme Court Clerk's Office on or before April 2, 2004. Approved June 8, 2004 on a permanent basis.
17B A. R. S. Juv. Ct. Rules of Proc., Rule 66, AZ ST JUV CT Rule 66
Current with amendments received through 5/15/11
Juv. Ct. R.P.
68
17B A.R.S. Juv.Ct.Rules of Proc., Rule 68 Arizona Revised Statutes Annotated Currentness
Rules of Procedure for the Juvenile Court (Refs & Annos)
Part IV. Adoption
2. General Adoption Provisions
Rule 68. Definitions
A. Definitions.
1. Parent. The term parent means the birth parent whose parental rights have not been terminated or the adoptive parent of a child for whom a final adoption decree has been issued.
2. Parties. Parties include the prospective adoptive parent, the person to be adopted, the parent of the person to be adopted, any person or entity whose consent is required in order to effectuate an adoption and any other person or entity who has been permitted by the court to intervene in the proceedings pursuant to Rule 24, Ariz. R. Civ. Pro. or the Indian Child Welfare Act.
3. Investigative Report. The investigative report shall include the following;
a. A home study;
b. The application for certification to adopt shall be accompanied by 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 forms that are provided for in A.R.S. § 8-105(D) and that are notarized whether that person is awaiting trial or has ever been convicted of any criminal offenses listed in A.R.S. § 41-1758.07, subsections B and C, in this state or similar offenses in another state or jurisdiction. The application shall identify all adult members of the applicant's household who are subject to fingerprinting. The application shall further advise whether the applicant currently has temporary custody of the child and the expiration date of the custody order; and
c. A check of records through the Child Protective Services Central Registry to determine whether the applicants or any adult living in the applicant's home are listed on the registry.
B. Definitions and Mandated Placement Preferences pursuant to the Indian Child Welfare Act, 25 U.S.C. 1903 and 1915:
1. Parent. The term parent means any biological parent of an Indian child or any Indian person who has lawfully adopted an Indian child, including adoptions under tribal law or custom. It does not include the unwed father where paternity has not been acknowledged or established.
2. Indian Child. The term Indian child means any unmarried person under the age of eighteen (18) and who is either a member of an Indian tribe or is eligible for membership in an Indian tribe and is the biological child of a member of the Indian tribe.
3. Indian Child's Tribe. The term Indian child's tribe means the Indian tribe in which an Indian child is a member or eligible for membership or, in the case of an Indian child who is a member of or eligible for membership in more than one tribe, the Indian tribe with which the Indian child has the more significant contacts.
4. Indian Custodian. The Indian custodian means any Indian person who has legal custody of an Indian child under tribal law or custom or under state law, or to whom temporary physical care, custody and control has been transferred by the parent of the child.
5. Indian Tribe. Indian tribe means any Indian tribe, band, nation, or other organized group or community of Indians recognized as eligible for the services provided to Indians by the Secretary of the Interior because of their status as Indians, including any Alaska Native village as defined in 43 U.S.C. 1602(c).
6. Extended Family Member. The term extended family member means a person as defined by law or custom of the Indian child's tribe, or, in the absence of such law or custom, means a person who has reached the age of eighteen (18) and who is the Indian child's grandparent, aunt or uncle, sister or brother, sister-in-law or brother-in-law, niece or nephew, first or second cousin, or step-parent.
7. Preadoptive or Foster Care Placement Preferences. Any preadoptive placement of an Indian child shall be in the least restrictive setting which most approximates a family and in which the child's special needs, if any, may be met. The child shall be placed within a reasonable proximity to the child's home, taking into account any special needs of the child. In any foster care or preadoptive placement, a preference shall be given, in the absence of good cause to the contrary, to a placement with:
a. A member of the Indian child's extended family;
b. A foster home licensed, approved or specified by the Indian child's tribe;
c. An Indian foster home licensed or approved by an authorized non-Indian licensing authority; or
d. An institution for children approved by an Indian tribe or operated by an Indian organization which has a program suitable to meet the child's needs.
8. Adoptive Placement Preferences. In any adoptive placement of an Indian child, a preference shall be given, in the absence of good cause to the contrary, to a placement with:
a. A member of the Indian child's extended family;
b. Other members of the Indian child's tribe; or
c. Other Indian families.
CREDIT(S)
Added Oct. 27, 2000, effective Jan. 1, 2001. Amended and effective on an emergency basis Sept. 30, 2009. Amended and effective on a permanent basis, Sept. 2, 2010.
APPLICATION
<Rules 9 through 35 shall apply to cases in which the offense occurred on or after January 1, 2001; Rules 36 through 66 shall apply to cases filed on or after January 1, 2001; and, Rules 67 through 87 shall apply to actions commenced on or after January 1, 2001.>
17B A. R. S. Juv. Ct. Rules of Proc., Rule 68, AZ ST JUV CT Rule 68
Current with amendments received through 5/15/11
Juv. Ct. R.P. 69
Arizona
Revised Statutes
Rules
of Procedure for the Juvenile Court
Part
IV. Adoption
2.
General Adoption Provisions
Rule
69. Appointment, Appearance and Withdrawal of Counsel
A. Appointment. The court may appoint counsel for those persons
entitled to counsel and determined to be indigent as provided by law,
these rules or the Indian Child Welfare Act. In determining whether
a person is indigent, the court shall:
1. Order the
person to provide proof of financial resources by filing a financial questionnaire
provided by the court. The court may question the person under oath. If
the court determines the person is not indigent the court may order the
person to pay a reasonable portion of the cost of counsel or deny the
request for appointment of counsel.
B.
Appearance. Counsel shall enter an initial appearance by appearing
personally before the court and
advising the court that counsel is representing a party or by filing a
written notice of appearance with the clerk of the court and providing
copies to the assigned judge and all parties.
C.
Manner of Appointment. If the court enters an order appointing
or denying counsel, a copy of the order or minute entry shall be provided
to the parties.
D.
Withdrawal of Counsel. Requests to withdraw as counsel shall
be in writing, unless otherwise authorized by the court, and shall be
provided to the parties.
APPLICATION
<New Rules 9 through 35 shall apply to cases
in which the offense occurred on or after January 1, 2001; Rules
36 through 66 shall apply to cases filed on or after January 1, 2001;
and, Rules 67 through 87 shall apply to actions commenced on or
after January 1, 2001.>
Juv. Ct. R.P. 75
Arizona
Revised Statutes
Rules
of Procedure for the Juvenile Court
Part
IV. Adoption
2.
General Adoption Provisions
Rule
75. Release of Information
All records pertaining
to adoption proceedings shall be maintained as confidential and shall
be withheld from public inspection except upon order of the court or as
otherwise provided by law.
APPLICATION
<New Rules 9 through 35 shall apply to cases
in which the offense occurred on or after January 1, 2001; Rules
36 through 66 shall apply to cases filed on or after January 1, 2001;
and, Rules 67 through 87 shall apply to actions commenced on or
after January 1, 2001.>
Juv. Ct. R.P. 76
Arizona
Revised Statutes
Rules
of Procedure for the Juvenile Court
Part
IV. Adoption
2.
General Adoption Provisions
Rule
76. Service of Process
A. Service of Process. Service of process shall be accomplished
pursuant to Rule 4.1 and 4.2, Ariz.R.Civ.P., unless otherwise set
forth in these rules.
B.
Notice. If the petition to adopt alleges or the court has reason
to believe the child at issue is an Indian child as defined by the Indian Child Welfare Act, in addition to service of process as required by
these rules, notification shall be given to the parent, Indian custodian
and child's tribe of any involuntary proceeding involving an Indian child.
Notice shall be provided by registered mail with return receipt requested.
If the identity or location of the parent or Indian custodian and the
tribe cannot be determined, notice shall be
given to the Secretary of the Interior by registered mail and the Secretary
of the Interior shall have fifteen (15) days after receipt to provide
the requisite notice to the parent or Indian custodian and the tribe.
The notice shall advise the parent or Indian custodian and the tribe of
their right to intervene. No hearing shall be held until at least ten
(10) days after receipt of notice by the parent or Indian custodian and
the tribe or the Secretary. The court shall grant up to twenty (20) additional
days to prepare for the hearing if a request is made by the parent or
Indian custodian or the tribe.
APPLICATION
<New Rules 9 through 35 shall apply to cases
in which the offense occurred on or after January 1, 2001; Rules
36 through 66 shall apply to cases filed on or after January 1, 2001;
and, Rules 67 through 87 shall apply to actions commenced on or
after January 1, 2001.>
Juv. Ct. R.P.
78
Arizona
Revised Statutes
Rules
of Procedure for the Juvenile Court
Part
IV. Adoption
3.
Certification
Rule
78. Temporary Custody
A. Petition for Temporary Custody. A person seeking temporary
custody of child shall file a petition and a notice of hearing with the
clerk of the court within five (5) days of obtaining the child. The petition
shall set forth how the child came into the prospective adoptive parent's
care, how long the child has resided with the prospective adoptive parent,
why continued custody is in the best interests of the child and whether
the child is subject to the Indian Child Welfare Act.
B.
Notice of Hearing. A notice of hearing shall accompany the petition
and shall set forth the location, date and time of the hearing and shall
require the attendance of the prospective adoptive parent, the child and
the person, division or agency responsible
for preparing reports for the court if the prospective adoptive parent
is not certified to adopt, unless waived by the court.
C.
Service. The petition and notice of hearing shall be served
by the person seeking custody in any manner reasonably designed to ensure
the attendance of the parties at the hearing and may include faxed, electronic
or telephonic notice. In addition to service as required by this rule,
if an Indian child is the subject of the temporary custody order, and
the child was not placed voluntarily by the parent or Indian custodian,
the child's tribe shall be notified of the hearing pursuant to Rule 76B.
D.
Procedure. Upon receipt of the petition, the court shall set
a hearing within ten (10) days which may be waived by the court upon a
showing of good cause. The court shall determine whether continued custody
by the prospective adoptive parent is in the child's best interests.
1. Attendance.
The prospective adoptive parent, the child and any person, representative
of the division or agency responsible for preparing reports for the court
shall attend the hearing, unless waived by the court for good cause shown.
2. Granting
of Custody. If the court grants temporary custody, the court
shall order that an application for certification to adopt be tiled with
the court within thirty (30) days of the granting of temporary custody
of the child to the prospective adoptive parent if the person is not certified
to adopt. If no person or representative of the division or agency has
been identified to prepare reports for the court, the court shall set
a status hearing within thirty (30) days to determine the status of the
certification.
E.
Findings and Orders. All findings and orders shall be in writing
and signed by the court, in the form of an order or minute entry. The
court shall;
1. Grant or
deny the petitioner's request for temporary custody; and
2. If the
Indian Child Welfare Act applies, the court shall make findings
pursuant to the standards and burdens of proof as required by the Act,
including whether placement of the Indian child is in accordance with
Section 1915 of the Act or whether there is good cause to deviate from
the preferences.
F.
Expiration of Custody Order. The order granting temporary custody
of a child to the prospective adoptive parent shall expire six (6) months
after issuance. Prior to the expiration of the temporary custody order
the court shall set a status hearing on the custody order to determine
whether the prospective adoptive parent has been certified and has filed
a petition to adopt. The court may extend the temporary custody order
upon a showing of good cause. The court may waive the attendance of the
parties at the status hearing if the court has sufficient information
to determine whether the prospective adoptive parent is proceeding with
the adoption in a timely manner. The court may vacate the hearing upon
the filing of a petition to adopt.
G.
Revocation of Temporary Custody. The court may rescind a temporary
custody order prior to the date of expiration for good cause. Notice and
an opportunity to be heard shall be provided to the prospective adoptive
parent and any agency or the division having placed the child.
APPLICATION
<New Rules 9 through 35 shall apply to cases
in which the offense occurred on or after January 1, 2001; Rules
36 through 66 shall apply to cases filed on or after January 1, 2001;
and, Rules 67 through 87 shall apply to actions commenced on or
after January 1, 2001.>
Juv. Ct. R.P.
79
Arizona
Revised Statutes
Rules
of Procedure for the Juvenile Court
Part
IV. Adoption
4.
Adoption
Rule 79. Petition to Adopt
A. Petition to Adopt. The petition to adopt and notice of hearing shall be filed with the clerk of the court. A petition to adopt shall be captioned, "In the Matter of___, a person under the age of 18 years," and may be based upon information and belief. In addition to information required by law, each petition to adopt shall contain the following information:
1. Whether the child to be adopted is an Indian child subject to the requirements of the Indian Child Welfare Act. If the Act applies, the petition shall include the following:
a. Whether the placement preferences required by Section 1915 of the Act have been complied with;
b. The name of the Indian child's tribe, if known;
c. Whether the Indian child is reasonably believed to be a resident or domiciliary of an Indian reservation; and
d. Whether the Indian child is a ward of a tribal court;
2. Whether all necessary consents have been obtained, noting any exceptions as provided by law;
3. Whether any termination of parental rights proceeding is pending, including any appeal; and
4. Whether approval has been granted through the Interstate Compact on the Placement of Children, if applicable.
B. Hearing.
1. Time Limits. The Court shall hold the hearing on the petition:
a. Within sixty days if the child has resided in the home of the prospective adoptive parent or parents for at least one year immediately preceding the filing of the petition for adoption unless the prospective adoptive parent is the stepparent of the child who has been married to the birth or legal parent of the child for less than one year.;
b. Within ninety days if the child is under three years of age when the petition is filed or has resided in the home of the prospective adoptive parent or parents for at least six months preceding the filing of the petition for adoption unless the prospective adoptive parent is the stepparent of the child who has been married to the birth or legal parent of the child for less than one year.
c. Within six months after the filing the petition in all other cases.
2. Notice. A notice of hearing shall accompany the petition and shall advise the parties as to the date, time and location of the hearing. If the child is an Indian child, in addition to service as required by this rule, the child's parent or Indian custodian and the child's tribe shall be notified pursuant to Rule 76(B) if the parent or Indian custodian did not voluntarily place the child for adoption.
C. Service. A petition to adopt and notice of hearing shall be served by the petitioner, pursuant to Rule 76, upon the following persons:
1. The petitioner,
2. The person, division or agency conducting the social study;
3. Any person, division or agency required by law to give consent unless consent and a waiver of notice has been filed previously with the court; and
4. Any person who has initiated a paternity action as provided by law.
CREDIT(S)
Added Oct. 27, 2000, effective Jan. 1, 2001. Amended and effective on an emergency basis Sept. 26, 2008. Adopted on a permanent basis Sept. 3, 2009, effective Jan. 1, 2010.
APPLICATION
<Rules 9 through 35 shall apply to cases in which the offense occurred on or after January 1, 2001; Rules 36 through 66 shall apply to cases filed on or after January 1, 2001; and, Rules 67 through 87 shall apply to actions commenced on or after January 1, 2001.>
17B A. R. S. Juv. Ct. Rules of Proc., Rule 79, AZ ST JUV CT Rule 79
Current with amendments received through 5/15/11
Juv. Ct. R.P.
84
Arizona
Revised Statutes
Rules
of Procedure for the Juvenile Court
Part
IV. Adoption
4.
Adoption
Rule
84. Hearing to Finalize Adoption
A. Attendance. The prospective adoptive parent, the spouse
of the prospective adoptive parent and the child to be adopted shall attend
the hearing. Upon a showing of good cause, the court may permit
testimony in the form of an oral deposition, conducted prior to the hearing
in open court, from an adoptive parent unable to attend the final adoption
hearing as required by law.
B.
Burden of Proof. The burden is on the petitioner to prove by
a preponderance of the evidence that the petitioner is a fit and proper
person to adopt and that it is in the best interests of the child to be
adopted.
C.
Procedure. At the hearing the court shall:
1. Receive
testimony from the parties verifying the information set forth in the
petition to adopt;
2. Determine
whether the child consents to the adoption if the child is twelve (12)
years of age or older;
3. Review
any post-placement agreements reached between the parties and approve
such agreements, as deemed appropriate;
4. Set additional
hearings within the time limits as provided by law if the court cannot
proceed with the adoption hearing for whatever reason; and
5. Terminate
the parental rights of the birth parent, by a finding of clear and convincing
evidence, if not terminated previously.
6. If an Indian
child subject to the Act is being adopted, the court shall determine whether:
a. The tribe
was notified of the proceedings and the right to intervene, if applicable;
b. The parent
or Indian custodian's consent to the adoption was taken in accordance
with the Indian Child Welfare Act;
c. The placement
complies with the preferences set forth in Section 1915 of the Act or
whether good cause exists for deviation from the placement preferences;
and
d. The parental
rights of the parent or Indian custodian have been terminated. The
court shall enter an order terminating parental rights, based upon evidence
beyond a reasonable doubt, including testimony of a qualified expert witness,
that continued custody of the child by the parent or Indian custodian
is likely to result in serious emotional or physical damage to the child
and that active efforts have been made to provide remedial services and
rehabilitative programs designed to prevent the breakup of the Indian
family and that these efforts have proven unsuccessful. This finding
shall be in addition to findings made, beyond a reasonable doubt, that
the petitioner has met the burden of proving grounds upon which to terminate
parental rights.
D.
Findings and Orders. The court shall make its findings in writing,
in the form of a minute entry or order and shall grant or deny the petition
to adopt at the conclusion of the hearing. The court may take the
matter under advisement if information required by law had not been received
by the court prior to or at the hearing, as required by these rules. If
the Indian Child Welfare Act applies, the court shall make findings
and enter orders pursuant to the standards and burdens of proof as required
by the Act.
1.
Wards of the Court. If the child is a ward of the court in the
county where the adoption is granted, the court shall dismiss the dependency
action. If the child is a ward of the court in another county or
state, the court shall direct that the division or agency having had legal
custody of the child file a motion to dismiss in the county where the
child is a ward.
APPLICATION
<New Rules 9 through 35 shall apply to cases
in which the offense occurred on or after January 1, 2001; Rules
36 through 66 shall apply to cases filed on or after January 1, 2001;
and, Rules 67 through 87 shall apply to actions commenced on or
after January 1, 2001.>
Juv. Ct. R.P. 85
Arizona
Revised Statutes
Rules
of Procedure for the Juvenile Court
Part
IV. Adoption
4.
Adoption
Rule
85. Motion and Hearing to Set Aside Adoption
A. Motion to Set Aside Adoption. A person seeking to set
aside a final order of adoption shall file a motion to set aside the adoption
with the clerk of the court. The motion shall allege grounds only
as permitted by Rule 60 (c), Ariz. R. Civ. P. or by the Indian Child Welfare Act. Upon receipt of the motion, the court shall set
an initial hearing within ten (10) days and shall advise the parties as
to the date, time and location of the initial hearing. If the child is
an Indian child, the court shall proceed in the manner set forth in the
Indian Child Welfare Act.
B.
Appointment of Guardian ad Litem. Upon the request of a party
or the court's own motion, the court may appoint a guardian ad litem to
represent the child. The court
may order the guardian ad litem or the division to conduct an investigation
for the purpose of determining whether a dependency petition should be
filed in the event the adoption is set aside. If appropriate, the
guardian ad litem shall prepare the dependency petition for filing.
C.
Initial Hearing. The court shall set an initial hearing within
ten (10) days of the filing of the motion to set aside. At the hearing
the court shall set an evidentiary hearing within forty-five (45) days
of the initial hearing and shall order that the parties exchange information
as provided in Rule 73(B), no later than thirty (30) days prior to the
evidentiary hearing.
D.
Burden of Proof. The burden is upon the person seeking to set
aside the adoption to prove the allegations contained in the motion by
clear and convincing evidence.
E.
Procedure. The court shall consider evidence, in the form of
testimony and/or documents which have been entered into evidence.
F.
Indian Child. After the finalization of an adoption, the parent
of an Indian child may withdraw consent to the adoption and petition the
court to vacate the adoption decree on the grounds that the consent was
obtained through fraud or duress. Upon a finding by the court that
consent was obtained through fraud or duress, the court shall vacate the
decree and return the Indian child to the parent. No adoption which
has been effective for two or more years may be invalidated unless otherwise
permitted under State law.
G.
Findings and Orders. The court shall make its findings in writing,
in the form of a minute entry or order. The court shall advise the
parties of their right to appeal and shall enter orders concerning the
custody of the child if the adoption is set aside. If the Indian Child Welfare Act applies, the court shall make findings and enter
orders pursuant to the standards and burdens of proof as required by the
Act.
APPLICATION
<New Rules 9
through 35 shall apply to cases in which the offense occurred on or after
January 1, 2001; Rules 36 through 66 shall apply to cases filed
on or after January 1, 2001; and, Rules 67 through 87 shall apply
to actions commenced on or after January 1, 2001.>
