Abuse and Neglect Hearings

V. The Preliminary Protective Hearing Phase in Dependency Cases

 

1. What is involved in reporting child abuse or neglect?

 

a. Reporting Procedures and Responsibilities. Every state has a mandatory child abuse reporting statute that lists persons legally mandated to report incidents of child abuse or neglect. Judges should consult their own state statutes and case law to determine mandated reporters. 156

 

b. Reporting Generally. Dependency cases are usually initiated upon reports of suspected abuse or neglect. Reporting laws help to identify children at risk as quickly as possible and designate agencies to receive and investigate reports.

 

c. Providing Immunity for Reporters and Abrogation of Privileged Communications. To encourage reporting, state statutes extend immunity from civil or criminal liability to those persons who report abuse or neglect. The majority of states require that reports be made in good faith for that blanket of immunity to attach. Certain traditional, privileged relationship have been abrogated to promote the exchange of relevant information in order to protect a child or prevent further abuse. However, the attorney-client privilege relationship is not abrogated. (See Chapter VI for additional information concerning privilege.)

 

d. Failing to Report Child Abuse. Mandatory reporting laws may impose civil and/or criminal penalties for a mandated reporter who fails to report suspected cases of child abuse or neglect. Civil liability for malpractice may be held against mandatory reporters whose failure to report may result in subsequent injury to the child.

 

e. Responding to the Report. Many jurisdictions have established 24 hour hotlines to receive reports of child abuse or neglect. If a child or family has experienced prior agency or court contact, these hotlines Usually provide access to databases which allow for the immediate initiation of an investigation and provide current information about the child or family to the investigator. Upon receipt of this information-nation the investigator has four options available: (1) no action; (2) warn the parent about the consequences of their action; (3) reach a voluntary agreement about corrective measures to remedy the alleged abuse; or (4) initiate legal action.

 

2. What is a petition and what are its contents?

 

a. Petition defined. Dependency proceedings are initiated when an abuse or neglect petition is filed with the court. The petition sets forth legal grounds for seeking judicial intervention and includes factual allegations relating to abuse or neglect. Typically, the petition will request relief in the form of the court’s declaration of the abused or neglected child as being a ward of the court under the supervision of a department of social services.

 

b. Petition described. The petition should include the name of the child, the date of birth and residence of the child, the name and residence address of the child’s parents (if known), the names and addresses of any persons having custody or control of the child or the nearest known relative if no parent can be located. The petition should in plain and concise language be consistent with statutory authority, and state the basis for requesting that the court assume jurisdiction over the child in the case. It is important that the petition state specific, articulated facts known to the petitioner.

 

c. The uniform Child Custody Jurisdiction Act (UCCJA) applied. The UCCJA may apply to child dependency proceedings when the child has been the subject of a custody proceeding in another state and that court maintains jurisdiction over the child. According to the Act, there are four bases for assuming jurisdiction: (1) home state; (2) significant connection to the forum; (3) abandonment/emergency; (4) no other state with jurisdiction. The theory behind the Act is to minimize forum shopping and to recognize decisions made by another court with primary jurisdiction. Judges should decline to hear cases where another forum is, according to the Act, more appropriate. 157

 

3. What are the practices and procedures for a preliminary protective hearing?

 

a. When held. A preliminary protective hearing (perhaps referred to as a detention hearing, emergency removal to shelter care hearing in some jurisdictions) should be held promptly upon issuance of any temporary removal order or upon receipt and docketing of a petition alleging abuse or neglect of a child. (See discussion of case disposition time standards in Chapter IX).

 

b. Review documents. The judge should review the petition, any order(s) to show cause and any supporting papers to determine whether the child should remain in the home or be removed form the home pending formal adjudication. This decision should be based upon a comprehensive assessment of the risk associated with each option.

 

c. Reasonable efforts. At this preliminary hearing, the court must make a finding that the child service agency has made “reasonable efforts” to preserve the family, must decide what services need to be immediately provided, decide upon appropriate visitation and determine the role of relatives in custody and visitation. (See Chapter IV for a complete discussion of P.L. 96-272 and reasonable efforts.)

 

(1) Agency Accountability. This hearing should be utilized to hold agencies accountable for adequate delivery of services. At this juncture, the agency can be ordered to conduct diagnostic assessments, including psychological evaluations.

 

d. Identification of and notice to parties. The identification and presence of the parties should be noted on the record. If all prospective parties are not present, the judge should inquire as to efforts made to advise them of the proceedings and their opportunity to be heard. Statutory requirements relating to notice to proper parties must be satisfied. Note that a specific state statute may require notice to foster parents, legal guardians and/or extended family members such as grandparents, aunts, uncles or siblings.

Minimally, parties include the judge or permissible judicial officer, parents, caseworkers, agency attorney, parents attorney, child’s advocate, court reporter or technology for reporting and security.

 

e. Appointment of counsel. The parties should be advised of their right to counsel and cautioned not to discuss specific allegations of abuse or neglect except with counsel. Inquiry should be made of the ability of the parties to retain counsel. If it appears they may be eligible for appointed legal representation, counsel should be appointed for them as is consistent with statutory requirements.

The judge should consider appointment of counsel for the child and also appointment of a nonprofessional to act as the child’s voice in court (see Canon 3B, Chapter 1). Such persons may include a Court Appointed Special Advocate (CASA), a Guardian Ad Litem (GAL), or a member of any other organized group whose main function is to assist courts in representing the interests of children.

(1) CASA. (For information on how the judge might initiate a CASA program, see Chapter IX, Question 4).

A CASA is a Volunteer trained to perform various duties including investigating cases, reporting observations to the court, and providing casework services. Because court systems and their lay advocacy programs may differ, there are four different CASA program structures:

 

(1) CASA-GAL model. This model substitutes court-appointed volunteers for attorney guardians ad litem in dependency matters. The volunteer is considered a party to the case, is entitled to examine witnesses, submit evidence, receive copies of relevant materials and present petitions on the child’s behalf. In addition to the CASA, the court may appoint an attorney to represent the child during certain proceedings if, for instance, the case proceeds to trial.

(2) CASA-Attorney Team. This model allows the court to appoint an attorney and a volunteer to represent the child together. The attorney performs legal services and the volunteer investigates and evaluates circumstances, identifies and advocates the child’s interests, mediates conflicting points of view, and monitors and facilitates the delivery of services.

(3) Friend of the Court. This model allows the judge discretion to appoint trained volunteers at varying points in the case process. This CASA may serve as a witness or an impartial observer and is not regarded as a legal party. The CASA is often free to conduct party interviews, investigate case activity and submit written reports to the court.

(4) Monitor. This model serves at the pleasure of the court in addition to a court-appointed attorney. The volunteer serves as the eyes and the ears of the court in reviewing case materials. This CASA does not advocate in the courtroom but aids in the smooth and expeditious flow of dependency cases through the court system.

f. Satisfying statutory criteria. It is imperative that the judge examine-nine his/her state statute authorizing temporary removal and issuance of protective orders to make certain all relevant criteria are met.

Judges should pay particular attention to these items, commonly included in such statutes:

 

(1) noting on the record the presence of the parties and their counsel;

(2) fully informing the parties of the substance of the petition, possible dispositions and the procedure to be followed;

(3) inquiring as to parties available to accept temporary custody of the child;

(4) assuring that the party accepting temporary custody understands and is prepared to abide by the provisions and conditions of all court orders issuing from the proceedings and that the same party receives copies of all such orders;

(5) securing authorization for medical treatment if or when necessary to safeguard the health of the child (ordering of a comprehensive physical examination is advisable);

(6) ordering the provision of services to the child and his/her family which constitute reasonable efforts to safely return the child home;

(7) considering possible funding sources for services ordered. Such sources may include funds available from a party or potential insurance coverage;

(8) ordering visitation arrangements pending the adjudicatory hearing;

(9) scheduling of a settlement conference prior to the adjudicatory hearing;

(10) and providing for the supplemental discovery of records and examinations, as necessary.

 

 

Summary. This chapter has provided insight for the dependency judge on issues related to the reporting of abuse or neglect, information related to the requisite contents of a petition alleging abuse or neglect, the practices and procedures related to a preliminary protective hearing and an overview on the utility of a Court-Appointed Special Advocate.

 

 

156 Mandatory reporting requirements of the Federal Child Abuse & Neglect Prevention & Treatment Act of 1974, 42 USC Sec. 5101 et seq.

157 UCCJA is codified in its entirety at 28 U.S.CA. § 1738A.