dissenting.
The majority opinion denies the writ on the ground that under the law the division of family services is not illegally restraining the infant child. This may be true technically speaking, but if so this case is a grievous example of the juvenile court ignoring what is in the best interests of the child.
The child has yet to have any hearing on what is in her best interests. The child was in the lawful custody of the Higgins family, placed there by the division. It is claimed (and we do not know it to be otherwise) that the Higgins family made known, early and on numerous occasions, their desire to adopt the child. They took care of the child for the first ten months of her life. There is an offer of substantial evidence in the file that the Higgins were good parents, that the child was thriving with them, and that it was detrimental to the child for her to be removed from the Higgins family. There really is no claim by respondents to the contrary.
Yet with only scant notice and with no pretense of a hearing or consideration by any impartial arbiter as to whether to do so was in the best interests of the child, the child was removed from Mr. and Mrs. Higgins and transferred to a new family.
On the day the child was abandoned, on the highway, August 19, 1977, the juvenile officer filed a petition under § 211.081,1 requesting that the court make a preliminary inquiry. This resulted in an immediate order placing temporary custody in the division of family services. On August 23, 1977, the juvenile officer filed a petition under § 211.031 and § 211.091. This calls for a hearing, § 211.171, and the court has authority to employ the services of qualified medical experts in considering the disposition of the child, § 211.161.
Despite the fact that rule 119.01 requires that a hearing shall be set as soon as practicable after the petition is filed, there has been no juvenile hearing in this case, even though fifteen to sixteen months elapsed before petitioners resorted to habeas corpus in this court.2
In the meantime, the child has been with the new family and of course the argument is made that it would now be detrimental to *303the best interests of the child to change her again from one family to another. The result is that the child’s fate is determined by default, by inaction and by mere passage of time. The procedure followed in this case ignores the best interests of the child and permits grave abuse and arbitrary favoritism, regardless of whether in fact it has occurred here.
. All statutory references are to RSMo 1969.
. The Comment to rule 119.01 points out that “[d]elay in adjudication is inimical to the purposes of the Juvenile Code.”