Ark. Code § 9-27-325

Current through the 2020 Fiscal Session
Section 9-27-325 - Hearings - Generally
(a)
(1)
(A) All hearings shall be conducted by the judge without a jury, except as provided by the Extended Juvenile Jurisdiction Act, § 9-27-501 et seq.
(B) If a juvenile is designated an extended juvenile jurisdiction offender, the juvenile shall have a right to a jury trial at the adjudication.
(2) The juvenile shall be advised of the right to a jury trial by the court following a determination that the juvenile will be tried as an extended juvenile jurisdiction offender.
(3) The right to a jury trial may be waived by a juvenile only after being advised of his or her rights and after consultation with the juvenile's attorney.
(4) The waiver shall be in writing and signed by the juvenile and the juvenile's attorney.
(b)
(1) The defendant need not file a written responsive pleading in order to be heard by the court.
(2) In dependency-neglect proceedings, if not appointed by the court in an order provided to all parties, counsel shall file a notice of appearance immediately upon acceptance of representation, with a copy to be served on the petitioner and all parties.
(c)
(1) At the time set for hearing, the court may:
(A) Proceed to hear the case only if the juvenile is present or excused for good cause by the court; or
(B) Continue the case upon determination that the presence of an adult defendant is necessary.
(2) Upon determining that a necessary party is not present before the court, the court may:
(A) Issue an order for contempt if the juvenile was served with an order to appear; or
(B) Issue an order to appear, with a time and place set by the court for hearing, if the juvenile was served with a notice of hearing.
(d)
(1) The court shall be a court of record.
(2) A record of all proceedings shall be kept in the same manner as other proceedings of circuit court and in accordance with rules promulgated by the Supreme Court.
(e)
(1) Unless otherwise indicated, the Arkansas Rules of Evidence shall apply.
(2)
(A) Upon motion of any party, the court may order that the father, mother, and child submit to scientific testing for drug or alcohol abuse.
(B) A written report of the test results prepared by the person conducting the test, or by a person under whose supervision or direction the test and analysis have been performed, certified by an affidavit subscribed and sworn to by him or her before a notary public, may be introduced in evidence without calling the person as a witness unless a motion challenging the test procedures or results has been filed within thirty (30) days before the hearing and bond is posted in an amount sufficient to cover the costs of the person's appearance to testify.
(C)
(i) If contested, documentation of the chain of custody of samples taken from test subjects shall be verified by affidavit of one (1) person's witnessing the procedure or extraction, packaging, and mailing of the samples and by one (1) person's signing for the samples at the place where the samples are subject to the testing procedure.
(ii) Submission of the affidavits along with the submission of the test results shall be competent evidence to establish the chain of custody of those specimens.
(D) Whenever a court orders scientific testing for drug or alcohol abuse and one (1) of the parties refuses to submit to the testing, that refusal shall be disclosed at trial and may be considered civil contempt of court.
(f) Except as otherwise provided in this subchapter, the Arkansas Rules of Civil Procedure shall apply to all proceedings and the Arkansas Rules of Criminal Procedure shall apply to delinquency proceedings.
(g) All parties shall have the right to compel attendance of witnesses in accordance with the Arkansas Rules of Civil Procedure and the Arkansas Rules of Criminal Procedure.
(h)
(1) The petitioner in all proceedings shall bear the burden of presenting the case at hearings.
(2)
(A) The following burdens of proof shall apply:
(i) Proof beyond a reasonable doubt in delinquency hearings;
(ii) Proof by a preponderance of the evidence in dependency-neglect proceedings, except if subject to the Indian Child Welfare Act of 1978, 25 U.S.C. § 1901 et seq., family in need of services, and probation revocation hearings; and
(iii) Proof by clear and convincing evidence for hearings to terminate parental rights, except if subject to the Indian Child Welfare Act of 1978, 25 U.S.C. § 1901 et seq., transfer hearings, and in hearings to determine whether or not reunification services shall be provided.
(B) If the Indian Child Welfare Act of 1978, 25 U.S.C. § 1901 et seq., applies, the following burdens of proof shall apply:
(i) Clear and convincing evidence in probable cause, adjudication, review, and permanency planning hearings; and
(ii) Beyond a reasonable doubt in termination of parental rights hearings that are subject to the Indian Child Welfare Act of 1978, 25 U.S.C. § 1901 et seq.
(i)
(1)
(A) All hearings involving allegations and reports of child maltreatment and all hearings involving cases of children in foster care shall be closed.
(B)
(i) A member of the General Assembly may attend any hearing held under this subchapter, including a closed hearing, unless the court excludes the member of the General Assembly based on the:
(a) Best interest of the child; or
(b) Court's authority under the Arkansas Rules of Civil Procedure or the Arkansas Rules of Evidence.
(ii) Except as otherwise provided by law, a member of the General Assembly who attends a hearing in accordance with subdivision (i)(1)(B)(i) of this section shall not disclose information obtained during his or her attendance at the hearing.
(C)
(i)
(a) A Child Welfare Ombudsman may attend a hearing held under this subchapter, including a closed hearing.
(b) However, a court may exclude the Child Welfare Ombudsman from a hearing if:
(1) It is in the best interest of the child; or
(2) The reason for the exclusion is based on the authority of the court under the Arkansas Rules of Civil Procedure or the Arkansas Rules of Evidence.
(ii) Unless otherwise allowed by law, the Child Welfare Ombudsman shall not disclose information that he or she obtains through his or her attendance at a hearing held under this subchapter.
(2) All other hearings may be closed within the discretion of the court, except that in delinquency cases the juvenile shall have the right to an open hearing, and in adoption cases the hearings shall be closed as provided in the Revised Uniform Adoption Act, § 9-9-201 et seq.
(j) Except as provided in § 9-27-502, in any juvenile delinquency proceeding in which the juvenile's fitness to proceed is put in issue by any party or the court, the provisions of § 5-2-301 et seq. shall apply.
(k) In delinquency proceedings, juveniles are entitled to all defenses available to criminal defendants in circuit court.
(l)
(1) The Department of Human Services shall provide to foster parents and preadoptive parents of a child in department custody notice of any proceeding to be held with respect to the child.
(2) Relative caregivers shall be provided notice by the original petitioner in the juvenile matter.
(3)
(A) The court shall allow foster parents, preadoptive parents, and relative caregivers an opportunity to be heard in any proceeding held with respect to a child in their care.
(B) Foster parents, adoptive parents, and relative caregivers shall not be made parties to the proceeding solely on the basis that the persons are entitled to notice and the opportunity to be heard.
(C) Foster parents, adoptive parents, and relative caregivers shall not be made parties to the proceeding when reunification remains the goal of the case.
(m)
(1)
(A) A grandparent shall be entitled to notice and shall be granted an opportunity to be heard in any dependency-neglect proceeding involving a grandchild who is twelve (12) months of age or younger when:
(i) The grandchild resides with this grandparent for at least six (6) continuous months prior to his or her first birthday;
(ii) The grandparent was the primary caregiver for and financial supporter of the grandchild during the time the grandchild resided with the grandparent;
(iii) The continuous custody occurred within one (1) year of the date the child custody proceeding was initiated; and
(iv) Notice to a grandparent under this subdivision (m)(1) shall be given by the department.
(B) A grandparent shall be entitled to notice and shall be granted an opportunity to be heard in any dependency-neglect proceeding involving a grandchild who is twelve (12) months of age or older when:
(i) The grandchild resides with this grandparent for at least one (1) continuous year regardless of age;
(ii) The grandparent was the primary caregiver for and financial supporter of the grandchild during the time the grandchild resided with the grandparent; and
(iii) The continuous custody occurred within one (1) year of the date the child custody proceeding was initiated.
(2) For purposes of this subsection, "grandparent" does not mean a parent of a putative father of a child.
(n)
(1)
(A) The department shall make diligent efforts to identify putative parents in a dependency-neglect proceeding.
(B) Diligent efforts shall include without limitation checking the Putative Father Registry.
(2)
(A)
(i) A petitioner may name and serve a putative parent as a party under § 9-27-312 to resolve the party status and rights under this section or terminate the rights of the putative parent under § 9-27-341.
(ii) If the petitioner does not name and serve a putative parent as a party in accordance with subdivision (o)(2)(A)(i) of this section, the petitioner shall provide a putative parent with notice under Rule 4 of the Arkansas Rules of Civil Procedure of a proceeding as soon as the putative parent is identified.
(B) The notice shall include information about:
(i) The method of establishing paternity;
(ii) The right of the putative parent to prove significant contacts; and
(iii) The right of the putative parent to be heard by the court.
(C) The petitioner shall provide the notice to the court and the parties to the case.
(3)
(A)
(i) If the petitioner has named and served a putative parent under this section and § 9-27-311, the court shall resolve the party status of a putative parent and the rights of the putative parent as a putative father.
(ii) A court may consider the termination of the rights of a putative parent under § 9-27-341 if the court finds that the rights of the putative parent as a putative father under subdivision (o)(5) of this section have attached.
(B) The court shall provide a putative parent the opportunity to be heard regarding his or her efforts in establishing paternity and his or her significant contacts with regard to his or her children in dependency-neglect proceedings.
(C) The court shall order a DNA test of each putative parent who is made a party in a dependency-neglect proceeding.
(4) A putative parent has the burden to prove paternity and significant contacts with the child.
(5)
(A) Except as provided under subdivision (o)(2)(A) of this section and § 9-27-311, a putative parent shall not be named as a party unless the circuit court determines that the putative parent:
(i) Has established paternity and the circuit court enters an order establishing the putative parent as the parent for the purposes of this subchapter and directs that the parent be added to the case as a party defendant; or
(ii) Has established significant contacts with the juvenile and the circuit court enters an order that putative parent rights have attached and the putative parent shall be added to the case as a party defendant.
(B)
(i) If the petitioner has named and served a putative parent under this section and § 9-27-311 and the circuit court finds that the putative parent has established paternity, the court shall:
(a) Enter an order establishing the putative parent as a parent for the purposes of this subchapter; and
(b) Maintain the parent as a party defendant.
(ii) If the petitioner has named and served a putative parent under this section and § 9-27-311 and the circuit court finds that the putative parent has established significant contacts with the juvenile, the court shall:
(a) Enter an order stating that the rights of the putative parent have attached; and
(b) Maintain the putative parent as a party defendant.
(C) If the circuit court finds that the putative parent has not established paternity and significant contacts, the circuit court shall:
(i) Find that the putative parent is not a parent for the purposes of this subchapter;
(ii) Find that the rights of the putative parent have not attached; and
(iii) Dismiss the putative parent from the case with no further notice to the putative parent required.
(6)
(A) A circuit court may order a DNA test at any time.
(B) A DNA test that establishes the paternity of the putative parent is sufficient evidence to establish that the putative parent is a parent for purposes of this subchapter and the court shall enter an appropriate order under subdivision (o)(5) of this section.
(7) The rights of a putative parent to appointed counsel are subject to § 9-27-316(h)(3).
(o)
(1) If the court determines that the health and safety of the juvenile can be adequately protected and it is in the best interest of the child, unsupervised visitation may occur between a juvenile and a parent.
(2)
(A) A petitioner has the burden of proving at every hearing that unsupervised visitation is not in the best interest of a child.
(B) If the court determines that unsupervised visitation between a juvenile and a parent is not in the best interest of the child, visitation between the juvenile and the parent shall be supervised.
(C)
(i) A rebuttable presumption that unsupervised visitation is in the best interest of the juvenile applies at every hearing.
(ii) The burden of proof to rebut the presumption is proof by a preponderance of the evidence.
(D)
(i) If the court orders supervised visitation, the parent from whom custody of the juvenile has been removed shall receive a minimum of four (4) hours of supervised visitation per week.
(ii) The court may order less than four (4) hours of supervised visitation if the court determines that the supervised visitation:
(a) Is not in the best interest of the juvenile; or
(b) Will impose an extreme hardship on one (1) of the parties.
(p) When visitation is ordered between a juvenile and the parent:
(1)
(A) A parent's positive result from a drug test is insufficient to deny the parent visitation with a juvenile.
(B) If at the time that visitation between the parent and a juvenile occurs a parent is under the influence of drugs or alcohol, exhibits behavior that may create an unsafe environment for a child, or appears to be actively impaired, the visitation may be cancelled; and
(2) A relative or fictive kin may transport a juvenile to and from visits with a parent if:
(A) It is in the best interest of a child;
(B) The relative or fictive kin submits to a background check and a child maltreatment registry check; and
(C) The relative or fictive kin meets the driving requirements established by the department.
(q)
(1) A court shall set a hearing to address the entry of a written order if:
(A) The written order is not provided to the court for entry within the time specified under this subchapter; and
(B) A party files a motion for a hearing to address the entry of the written order.
(2)
(A) The court shall conduct a hearing to address the entry of the written order within thirty (30) days from the date on which the motion for a hearing to address the entry of the written order is filed.
(B) A hearing to address the entry of a written order may be the next scheduled hearing in the proceeding if the hearing to address the entry of the written order is being held within thirty (30) days from the date on which the motion for a hearing to address the entry of the written order is filed.
(C) The court is not required to conduct a hearing to address the entry of a written order if the written order is submitted to the court.
(3) The court shall reassign the preparation of the written order as needed.

Ark. Code § 9-27-325

Amended by Act 2019, No. 558,§ 1, eff. 7/24/2019.
Amended by Act 2019, No. 558,§ 3, eff. 7/24/2019.
Amended by Act 2019, No. 558,§ 2, eff. 7/24/2019.
Amended by Act 2019, No. 541,§ 4, eff. 7/24/2019.
Amended by Act 2019, No. 329,§ 3, eff. 7/24/2019.
Amended by Act 2019, No. 945,§ 3, eff. 7/1/2019.
Amended by Act 2017, No. 1111,§ 2, eff. 8/1/2017
Amended by Act 2017, No. 701,§ 1, eff. 8/1/2017
Amended by Act 2015, No. 1022,§ 3, eff. 7/22/2015
Amended by Act 2013, No. 1055,§ 9, eff. 8/16/2013
Acts 1989, No. 273, § 24; 1993, No. 758, § 5; 1995, No. 533, § 6; 1997, No. 1118, § 2; 1999, No. 401, § 5; 1999, No. 1192, § 17; 2001, No. 987, § 3; 2001, No. 1497, § 2; 2001, No. 1503, § 5; 2003, No. 1166, § 14; 2003, No. 1319, § 12; 2007, No. 587, § 12; 2009, No. 1311, § 1; 2011, No. 591, § 6; 2011, No. 1175, § 5