Petition to Modify
Relative Care Subsidy

Practice Points

• RCS not a good permanent plan where the child could be adopted even if it is a relative adoption

• Petition to Modify should NOT be confused with 15-11-55(c) which allows the Court to return custody to a parent or outside DFACS (relieving DFACS of custody) at any review or sua sponte

• Petition to Modify should NOT be confused with 15-11-58(l)(1) which allows the Court return custody to the parents

15-11-40. Modification or vacation of orders; revocation of probation; petition; hearing and notice.

An order of the court shall be set aside if:

It appears that it was obtained by fraud or mistake sufficient therefore in a civil action;

The court lacked jurisdiction over a necessary party or of the subject matter; or

Newly discovered evidence so requires.

An order of the court may also be changed, modified, or vacated on the ground that changed circumstances so require in the best interest of the child, except an order committing a delinquent child to the Department of Juvenile Justice, after the child has been transferred to the physical custody of the Department of Juvenile Justice, or an order of dismissal. An order granting probation to a child found to be delinquent or unruly may be revoked on the ground that the conditions of probation have not been observed.

Any party to the proceeding, the probation officer, or any other person having supervision or legal custody of or an interest in the child may petition the court for the relief provided in this Code section. The petition shall set forth in clear and concise language the grounds upon which the relief is requested.

After the petition is filed, the court shall fix a time for hearing and shall cause notice to be served, as a summons is served under Code Section 15-11-39.1, on the parties to the proceeding or those affected by the relief sought. After the hearing, which may be informal, the court shall deny or grant relief as the evidence warrants.

15-11-39.1. Service of summons; costs of service and travel expenses.

If a party to be served with a summons is within this state and can be found, the summons shall be served upon him or her personally at least 24 hours before the hearing. If a party to be served is within this state and cannot be found but his or her address is known or can with reasonable diligence be ascertained, the summons may be served upon such party by mailing him or her a copy thereof by registered or certified mail or statutory overnight delivery at least five days before the hearing. If a party to be served is outside this state but he or she can be found or his or her address is known or his or her whereabouts or address can with reasonable diligence be ascertained, service of the summons may be made either by delivering a copy thereof to such party personally or by mailing a copy to him or her by registered or certified mail or statutory overnight delivery at least five days before the hearing.

If, after reasonable effort, a party to be served with a summons cannot be found and such party's post office address cannot be ascertained, whether he or she is within or outside this state, the court may order service of the summons upon him or her by publication in accordance with Code

Sections 9-11-4 and 9-11-5. The hearing shall not be earlier than five days after the date of the last publication. Service of the summons may be made by any suitable person under the direction of the court.

(d)The court may authorize the payment from county funds of the costs of service and of necessary travel expenses incurred by persons summoned or otherwise required to appear at the hearing.

5-11-39.2. Provisional hearing where summons served by publication; interlocutory effect of findings and order; final hearing.

If service of summons upon a party is made by publication, the court may conduct a provisional hearing upon the allegations of the petition and enter an interlocutory order of disposition if:

The petition alleges delinquency, unruly conduct, or deprivation of the child;

The summons served upon any party:

States that prior to the final hearing on the petition designated in the summons a provisional hearing thereon will be held at a specified time and place;

Requires the party who is served other than by publication to appear and answer the allegations of the petition at the provisional hearing;

States further that findings of fact and orders of disposition made pursuant to the provisional hearing will become final at the final hearing unless the party served by publication appears at the final hearing; and

Otherwise conforms to Code Section 15-11-39; and

The child is personally before the court at the provisional hearing.

All provisions of this article applicable to a hearing on a petition, to orders of disposition, and to other proceedings dependent thereon shall apply under this Code section, but findings of fact and orders of disposition shall have only interlocutory effect pending final hearing on the petition. The rights and duties of the party served by publication are not affected except as provided in subsection (c) of this Code section.

(c)If the party served by publication fails to appear at the final hearing on the petition, the findings of fact and interlocutory orders made shall become final without further evidence and shall be governed by this article as if made at the final hearing. If the party appears at the final hearing, the findings and orders shall be vacated and disregarded and the hearing shall proceed upon the allegations of the petition without regard to this Code section.

15-11-58 (i)

(i)(1) If the court has entered an order finding that reasonable efforts to reunify a child with his or her family would be detrimental to the child in accordance with subsection (h) of this Code section and if the court finds that referral for termination of parental rights and adoption is not in the best interest of the child, the court may, upon proper petition, enter a custody order which shall remain in effect until the child's eighteenth birthday:

Placing the child in the custody of a relative of the child if such a person is willing and, after study by the probation officer or other person or agency designated by the court, is found by the court to be qualified to receive and care for the child;

Placing the child in the custody of any non-relative individual who, after study by the probation officer or other person or agency designated by the court, is found by the court to be qualified to receive and care for the child;

Placing the child in the custody of a suitable individual custodian in another state pursuant to the provisions of Code Section 15-11-89; or

In the case where the court has found a compelling reason that a placement pursuant to subparagraph (A), (B), or (C) of this paragraph is not in the child's best interest, placing the child in the custody of an agency or organization licensed or otherwise authorized by law to receive and provide care for the child which is operated in a manner that provides such care, guidance, and control as would be provided in a family home as defined in the court's order.

Such order may be modified following a petition for modification by a party or upon motion of the court pursuant to Code Section 15-11-40.

(2) A probation officer, judicial citizen review panel established by the court, or other person or agency designated by the court shall, after study or review, submit a report to the court addressing whether the custodian to whom custody of a child has been given pursuant to this Code section continues to be qualified to receive and care for the child within:

Thirty-six months of an order placing a child in the custody of a relative pursuant to subparagraph (A) of paragraph (1) of this subsection and every 36 months thereafter; or

Twelve months of an order placing a child in the custody of a non-relative, an out-of-state custodian, or an agency or organization licensed or otherwise authorized by law to receive and provide care for the child pursuant to subparagraph (B), (C), or (D) of paragraph (1) of this subsection and every 12 months thereafter.

Whenever a child is placed in the custody of an agency or organization licensed or otherwise authorized by law to receive and provide care for the child pursuant to subparagraph (D) of paragraph (1) of this subsection, such agency or organization shall be charged with the responsibility of notifying the court within ten days in the event its license is placed on probation, suspended, revoked, or surrendered and, in such event, the court shall conduct a judicial review within ten days of such notification to determine whether another placement should be made for the child.

15-11-89. Ordering out-of-state supervision; payment of cost thereof.

Subject to the provisions of this article governing dispositions and to the extent that funds of the county are available, the court may place a child in the custody of a suitable person in another state. On obtaining the written consent of a juvenile court of another state which has adopted the Uniform Juvenile Court Act or a substantially similar act which includes provisions corresponding to this Code section and Code Section 15-11-90, the court of this state may order that the child be placed under the supervision of a probation officer or other appropriate official designated by the accepting court. One certified copy of the order shall be sent to the accepting court and another shall be filed with the clerk of the governing authority of the county of the requesting court of this state.

The reasonable cost of the supervision, including the expenses of necessary travel, shall be borne by the county of the requesting court of this state. Upon receiving a certified statement signed by the judge of the accepting court of the cost incurred by the supervision, the court of this state shall certify if it appears that the sum so stated was reasonably incurred and shall file it with the appropriate officials of the county for payment. The appropriate officials shall thereupon issue a warrant for the sum stated payable to the appropriate officials of the county of the accepting court.

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GACC is an affiliate of the National Association of Counsel for Children	GACC Jane Okrasinski Executive Director Email: jane@gaccchildlaw.org