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Rule 332. Preliminary Protective Hearing

Arizona Revised Statutes AnnotatedRules of Procedure for the Juvenile CourtEffective: July 1, 2022

Arizona Revised Statutes Annotated
Rules of Procedure for the Juvenile Court (Refs & Annos)
Part III. Child Dependency and Guardianship, Termination of Parental Rights
3. Dependency Proceedings
Effective: July 1, 2022
17B A.R.S. Juv.Ct.Rules of Proc., Rule 332
Formerly cited as AZ ST JUV CT Rule 50
Rule 332. Preliminary Protective Hearing
(a) Generally. At the preliminary protective hearing, the court must determine whether continued temporary physical custody of the child is necessary, giving paramount consideration to the health and safety of the child.
(b) ICWA.
(1) Inquiry. The court must inquire at the start of the hearing if any party or participant has reason to know under 25 C.F.R. § 23.107 that the child is an Indian child.
(2) Emergency Removal or Placement. If there is reason to know the child is an Indian child and the child was removed from the physical custody of the parent or Indian custodian, the preliminary protective hearing must meet the requirements for an emergency hearing provided in ICWA § 1922 and 25 C.F.R. § 23.113. The petition or accompanying documents must contain the information listed in 25 C.F.R. § 23.113, including the efforts to contact the parent, Indian custodian, and tribe about the emergency proceeding.
(3) Proceedings.
(A) The court must determine whether a judicial officer made a finding before the dependency petition was filed regarding the child's removal from the home, as provided by Rule 327(d)(1) and 25 C.F.R. § 23.113(d) and affirm the findings. Or, if a judicial officer did not previously make that finding, then it must find whether there was probable cause to believe that the emergency removal or placement was necessary to prevent imminent physical damage or harm to the child pursuant to 25 C.F.R. § 23.113(d). At the preliminary protective hearing, a parent may request a hearing to contest the finding.
(B) If a judicial officer finds that that the emergency removal or placement was necessary to prevent imminent physical damage or harm to the child, the court must affirm the child's placement.
(C) If the court has made a finding that emergency removal or placement was not necessary to prevent imminent physical damage or harm, the court must return the child to the parent or Indian custodian, unless the court finds by a preponderance of the evidence that returning the child to the parent or Indian custodian would subject the child to substantial and immediate danger or threat of such danger, as provided by 25 C.F.R. § 23.114.
(D) A parent or Indian custodian has a right to request a temporary custody hearing under Rule 333.
(4) Notification.
(A) Reason to Know of Indian Status. If there is reason to know the child is an Indian child, the court must order the petitioner to notify the parent, Indian custodian, the Indian child's tribe, or the Secretary of the Interior by registered or certified mail, as required by ICWA § 1912(a).
(B) No Reason to Know. If the court does not have sufficient evidence to determine that the child is an Indian child, then pursuant to 25 C.F.R. § 23.107, the petitioner must use due diligence to identify and work with all tribes in which there is reason to know the child may be a member, or eligible for membership, to verify whether the child is in fact a member, or a biological parent is a member and the child is eligible for membership.
(5) Placement Preferences. If there is reason to know the child is an Indian child, the court must find whether placement of the Indian child is in accordance with Rule 321 and ICWA § 1915 and 25 C.F.R. §§ 23.131 through 23.132.
(c) Procedure. At the preliminary protective hearing, the court must:
(1) appoint counsel pursuant to Rule 303;
(2) determine:
(A) whether the parties have been served pursuant to A.R.S. § 8-841(D) and Rule 329;
(B) whether to close the proceeding and provide the admonition for a hearing that remains open to the public, as required by A.R.S. § 8-525 and Rule 312;
(C) whether paternity has been established as to any father, and if not, the court must ask the mother, and may take her testimony, concerning the identity and location of any potential father;
(D) whether reasonable efforts were made to prevent or eliminate the need for removal of a child from the child's home and if services are available that would eliminate the need for continued removal pursuant to A.R.S. § 8-825(D);
(E) whether there is probable cause to believe that continued temporary physical custody is clearly necessary to prevent abuse or neglect pending the hearing on the dependency petition required by A.R.S. § 8-824(F);
(F) whether a proposed case plan for services has been submitted and whether it is reasonable and necessary to carry out the case plan; and
(G) whether the parent admits, does not contest, or denies the allegations in the dependency petition;
(3) if DCS is the petitioner, determine:
(A) whether DCS placed, or is attempting to place, the child with a grandparent or another member of the child's extended family, including a person who has a significant relationship with the child;
(B) whether DCS made arrangements, as provided by A.R.S. §§ 8-512, 8-512.01, and 8-514.05, for:
(i) the assembly of the child's medical records;
(ii) a medical assessment of the child;
(iii) the implementation of referrals; and
(iv) the communication of recommendations and results.
(4) identify on the record all the documents the court has received and will consider, including DCS's report prepared pursuant to A.R.S. § 8-824(H) and other evidence permitted by A.R.S. § 8-825;
(5) review any agreements reached at the preliminary protective conference;
(6) conduct a temporary custody hearing pursuant to A.R.S. § 8-825 and Rule 333, if requested by a parent;
(7) consider as a mitigating factor the availability of reasonable services to the parent to prevent or eliminate the need for removal of the child and efforts of the parent to obtain and participate in these services;
(8) inform a foster parent, pre-adoptive parent, a member of the child's extended family with whom the child has been placed, or a relative identified as a possible placement, of the right to be heard in any court proceeding regarding the child; and
(9) provide a copy of Form 1, and request that the parent sign and return the form to the court and ensure that the parent understands the parent's rights and responsibilities pursuant to A.R.S. § 8-824(D), (E)(6), (E)(8), and (I).
(d) Findings. At the conclusion of the hearing, the court must make findings that include the following:
(1) that the court has jurisdiction over the subject matter and persons before the court;
(2) that the initial dependency hearing was held pursuant to Rule 334 for those parties who were present;
(3) if a parent requested a review of temporary custody, that the hearing has been held;
(4) that there is or is not probable cause to believe that continued temporary physical custody of the child is clearly necessary to prevent abuse or neglect pending the dependency adjudication;
(5) that the petitioner has used or will use due diligence to identify and work with all tribes for which there is reason to know the child may be a member or eligible for membership, to verify whether the child is in fact a member or a biological parent is a member and the child is eligible for membership;
(6) that the parent was advised, and understands the consequences, of:
(A) failing to participate in reunification services, and
(B) failing to attend future proceedings;
(7) if applicable, the reasons why siblings have not been placed together; and
(8) other findings as appropriate or required by law.
(e) Orders. At the conclusion of the hearing, the court must enter orders:
(1) returning the child to the parent, or if the child is not returned to the parent, declaring the child a ward of the court and entering orders regarding the placement of the child pending the determination of the dependency petition, and visitation/parenting time, if any, pursuant to A.R.S. §§ 8-824(J), 8-825(C), and Rule 333(e);
(2) approving or modifying any of the agreements the parties reached at the preliminary protective conference;
(3) if paternity has not been established, that it be established through testing or execution of a voluntary acknowledgment of paternity;
(4) if siblings have not been placed together, requiring that DCS make reasonable efforts to place a child with siblings, if such placement is in the children's best interests, or if that is not possible, to maintain frequent visitation or other ongoing contact between the siblings;
(5) except as provided in A.R.S. §§ 8-824(H)(9) and 8-846, regarding services for the child and parent as follows:
(A) if the child is in the custody of DCS, that DCS make reasonable efforts to provide services to facilitate reunification, including visitation/parenting time; or
(B) if the child is not in the custody of DCS, that the parties participate in reasonable services that will facilitate reunification of the family, including visitation/parenting time, or another permanent plan for the child.
(6) that the parent provide the court with the names, relationships, and contact information necessary to locate persons who are related to the child or who have a significant relationship with the child, unless the parent informs the court that there is not sufficient information available to locate a relative or person with a significant relationship with the child;
(7) that the parent immediately inform DCS and the court at future hearings if they become aware of new information on the location of a relative or individual with whom the child has a significant relationship;
(8) setting an initial dependency, a continued initial dependency, or a publication hearing for any party who was not served and did not appear, in accordance with A.R.S. § 8-842 and Rule 334 to comply with ICWA;
(9) setting dates for future proceedings, which may include a settlement conference, mediation, pretrial conference, or adjudication if a denial is entered; and
(10) entering other orders as appropriate or required by law.
(f) Copies for the Parties. At the conclusion of the hearing, the court must provide a copy of the court's written findings and orders to each party who has appeared at the hearing.

Credits

Added Dec. 8, 2021, effective July 1, 2022.
17B A. R. S. Juv. Ct. Rules of Proc., Rule 332, AZ ST JUV CT Rule 332
State Court Rules are current with amendments received through April 1, 2024. The Code of Judicial Administration is current with amendments received through April 1, 2024.
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