Child Protection Cases Procedure

The child protection arena can be daunting to navigate effectively. Even for the skilled lawyer, it is not a natural type of law to practice. There are few specialists in it, and the few specialists seem to have their own particular way of handling them. I have recently been invited in to handle CPA cases in Canyon County. Here are some things I picked up. I hope this blog helps you.

This is how a case likely works.

Welfare Check

First there is a Welfare Check. Generally the Welfare check is done by health and welfare themselves or a law enforcement official (sometimes a physician or any other person depending on the charge). If the Health and Welfare worker or officer finds there is probable cause to believe that there is abandonment, neglect, abuse, or homelessness the Courts of Idaho will have jurisdiction to find that a child could come under the Health and Welfare Act.

Shelter Care

If the law enforcement official believes that a child is endangered based on his surroundings and removal is necessary to prevent serious physical or mental injury or if the child is abandoned he may actually remove the child pending a shelter care hearing. Idaho Code 16-1611 and I.C. 16-1619. The child then is placed with Health and Welfare. However, Health and Welfare cannot hold them indeterminately without a hearing.

Here's what you should expect at the next hearing. There is no jury at a shelter care hearing or any hearing in Child Protection Cases. You will have a judge and the room will be filled with busy attorneys, Health and Welfare workers, and other people (sometimes college kids observing). The hearing is a closed hearing, which means only the parties are allowed in the case. No relatives or friends are generally permitted unless the Judge says its okay. Many of the attorneys get the case the night before so they may not know the ins and outs of your case, and they only have a few minutes to talk with you. However, it is extremely important to take their advice. Since they work in this arena, those attorneys are specialists and know the Judge and how the system works. It may be hard to hear, but you will do yourself a huge favor early on by listening to them. 

The hearing is called a  shelter care hearing. The shelter care hearing must be held within the first 48 hours, excluding weekends and holidays if the children are removed from the home. Idaho Code 16-1619. At the hearing the Judge will decide whether by a "preponderance of the evidence" that the child should either go home or remain in the care of the Department of Health and Welfare. This burden is very low. It is more than likely that the Court will find that their is reason to keep the children in care at least until pending the adjudicatory hearing. Meanwhile you will get a hearing to attend an Adjudicatory Hearing.

Its at this point the prosecutor gets involved. A prosecutor is a person who works for the local prosecutors office. A prosecutor then writes the "Petition" which alleges the offense and how it applies to the case. The prosecutor must allege either, abuse, neglect, homelessness, or abandonment in their petition. It is at this time that the Prosecutor beings to investigate the case. 

Adjudicatory Hearing

An Adjudicatory Hearing is where you can introduce evidence and cross examine witnesses to show that the Court does not have jurisdiction over the issue. It must be held within 30 days. There is no punishment for going forward with the hearing, however, it may be a waste of time in some instances. You should listen to the counsel of your attorney on this issue. Its important to remember, the Adjudicatory Hearing is not a beyond a reasonable doubt standard. It is a "preponderance" standard. A preponderance standard is a lower burden of proof. 

If the Court finds there is no jurisdiction then they will dismiss the petition. On the other hand if they find there is jurisdiction, then this case will progress through the system. So the Court must only find that there was abuse, neglect, abandonment, or homelessness by a preponderance to move forward and keep the children in the care of the department. 

If you choose to waive your Adjudicatory Hearing you will then most likley go to a "case plan hearing." 

Case Plan Hearing

A Case plan is merely a guide to getting your children back completely from Health and Welfare. Case plans often cover areas of stability such as parenting classes, anger management, getting a stable job, having stable housing, drug tests or rehabs. It also includes going to doctor visits and visiting the children as much as possible. As a practical matter if you do these things you should be able to get your children back as quickly as possible. 

Although, the Department will help you along the way in most instances (where reasonable efforts are needed), you must remember that you have a time limit to get these things done. You have about 15 months from the time the Petition is filed to complete the case plan or the Court will look at permanency with other relatives or foster parents/adoption.

Status Conference and Reviews

  The Review hearings must not be held more then 6 months from the time of the case plan and generally are just a time when the Court can hold you accountable and give you advice on how to proceed. If things are good then you don't have to worry about the hearing. This is the time for parents to actually communicate on a higher level with the Court. The attorneys should take more of a back seat and let you express yourself. If you have any questions or inabilities you should let the Court know at this hearing.

Permanency Hearing

This hearing is held near the one year mark. At this hearing the Court decides whether it would be in the best interest of you child to terminate your parental rights or reunite you with your child. The Court will look at the progress on the case plan as an indicator on what to do, but should consider the input of all the attorneys and guardian ad litem as well as Health and Welfare on what to do. If the goal remains to reunite, then the case can progress towards another status and possibly a vacating of the case.

Termination Hearing

At this hearing the Court will terminate the parental rights. That can either be a voluntary act, by which the parent agrees that it is in the child's best interest to not have them as a parent, or can be involuntary where the Court has to prove that it is not in the child's best interest to remain with the parent. Each choice has a lasting impact so it is important to communicate with your attorney before making either decision.