Initiation of Proceeding
Child Protective Act proceedings are usually initiated by the prosecutor's office following a referral by law enforcement or the Department of Health and Welfare. In some situations a juvenile prosecution may be expanded, by order of the presiding judge, to incorporate the provisions of the Child Protective Act.
Removal of Children from their Home
A child can be removed from their home when it is determined by a law enforcement officer or by a judge that the child is endangered in his/her surroundings and prompt removal is necessary to prevent serious physical or mental injury to the child, or where the child is an abandoned child. In such cases, a shelter care hearing must be held within 48 hours of the removal of the child (excluding weekends and holidays). The parents must be notified that the child has been removed and of the time and place scheduled for the shelter care hearing.
Appointment of an Attorney
Parents, guardians and the child (if they are indigent and unable to retain counsel of their choosing) are entitled to have an attorney appointed at county expense.
Shelter Care Hearing
Parents must be given notice 24 hours prior to the shelter care hearing. This is an informal hearing. The purpose of the hearing is to determine if the child should remain in a place of shelter care (e.g., a licensed foster-care home) until such time as an adjudicatory hearing is complete and a disposition is made by the court regarding the future care and residence of the child, or if sufficient safeguards are or can be put in place to guarantee the safety of the child during the pendancy of the case.
Following the shelter care hearing (or once an adjudicatory hearing has been set) the Department of Health and Welfare is required to investigate the circumstances of the child and his/her family and file a report with the court. The investigative reports are made available to all of the parties at or before the pretrial conference.
The law provides for a pretrial conference to be held three (3) to five (5) days prior to the adjudicatory hearing. The parties use these conferences to attempt to come to an agreement about what should be done with the case.
The adjudicatory hearing is the trial portion of the case. It must be held within thirty (30) days of the filing of the petition which initiated the case. The issues are decided by the presiding judge, not a jury. The burden of proof at the adjudicatory hearing is "by a preponderance of the evidence," not the "beyond a reasonable doubt" standard associated with criminal cases. If the judge determines the child falls within the purview of the Child Protective Act, the judge then proceeds to determine what should ultimately be done about the child's situation. This will usually include either an order of protective supervision or an order granting the Department legal custody of the child.
Protective Supervision v. Legal Custody of the Department
The judge may allow the child to remain in the custody of his/her parent or guardian but provide that the Department of Health and Welfare will maintain protective supervision of the child's well-being. Under this arrangement, the Department takes various steps, including providing necessary services, to ensure the safety of the child while in the home of his/her parent or guardian.
Alternatively, the judge may place the child in the legal custody of the Department. The Department then must place the child with a licensed foster-care provider or other suitable guardians. Under this arrangement, the Department takes various steps, including providing necessary services, in an attempt to reunify the child safely with the parents. If reunification can be safely accomplished, the order of legal custody will usually be downgraded to an order of protective supervision.
The Department of Health and Welfare is required to engage in what is termed "concurrent planning." This means that they must formulate a plan to accomplish reunification while, at the same time, formulating a plan for providing a permanent placement (e.g., adoption) if reunification cannot be accomplished.
The Department is required to submit a written case plan within sixty (60) days after removal of the child from the home or thirty (30) days after the adjudicatory hearing, whichever occurs first. Within five days of the filing of the case plan, the court is required to hold a hearing with all of the parties to discuss the case plan and to issue an order setting forth a plan for reunification of the family.
Review and Permanency Hearings
A review hearing is required to be held no later than six (6) months after the court finds that the child comes under the purview of the CPA, and every six (6) months thereafter so long as the child is in the custody of the Department.
A permanency hearing is required to be held to review the permanency plan of the Department within twelve (12) months from the date the child is removed from the home or the date the court found jurisdiction under the CPA, whichever occurs first. At the permanency hearing, the court will approve, reject or modify the Department's permanency plan. The permanency hearing may be combined with a review hearing.
Reunification versus Termination of Parental Rights
The goal of the CPA is to accomplish reunification of the child with his/her parents or guardians. However, in some cases this is either inappropriate or impossible to accomplish. In such cases, the prosecutor's office will file a petition to terminate the parental rights of the parent with respect to the child. If termination is granted, the Department then takes steps to have the child adopted.
The Federal Adoption and Safe Family Act and the CPA require that government authorities establish that reasonable efforts have been taken to prevent removal of the child from the home. This applies at all stages of the proceeding from shelter care through termination of parental rights. These efforts are not required when certain aggravating circumstances, such as sexual abuse, exist.