A GUIDE TO CHILD IN NEED OF ASSISTANCE PROCEEDINGS

Transcription

1 A GUIDE TO CHILD IN NEED OF ASSISTANCE PROCEEDINGS

2 CHILD IN NEED OF ASSISTANCE HEARINGS Temporary Removal Hearing: To determine whether child should continue to be removed from the child s home due to imminent risk of harm pending further hearing. Iowa Code Must be held within 10 days of ex parte removal. See p.4 for more information Removal of Physical/Sexual Abuser: Hearing on motion to vacate order removing an adult alleged to have physically or sexually abused a child from the child s home. Iowa Code See p.7 for more information Adjudication: Hearing to determine whether the State has proved that your child is in need of assistance and that court supervision is required. Must be held within 60 days of filing of petition. Iowa Code section See p.7 for more information Physical or Mental Examination/ Substance Abuse Evaluation Hearing: To determine whether a physical or mental examination or substance abuse examination of either the child or the parent is necessary. Iowa Code See p.10 for more information Disposition Hearing: To determine the custody, placement, supervision and services to be provided to a child in need of assistance and to parents. Iowa Code Held as soon as practicable following adjudication. See p.10 for more information 2

3 Review Hearing: To review status of the case. Court determines whether (a) last dispositional order should be continued, (b) child can be returned home if previously removed, or (c) permanency hearing should be scheduled. Iowa Code (9). Must be held within six months of dispositional hearing which transfers custody. See p.13 for more information Permanency Hearing: To determine whether the child can be returned home, termination petition be filed, or other permanency placement order entered. Iowa Code Hearing must be held within 30 days of a finding of waiver of reasonable efforts. Otherwise, hearing must be held within 12 months of child s removal from parent s home. See p.14 for more information Permanency Review Hearing: To determine whether the permanency order should be continued, modified, or terminated. Iowa Code Hearing must be held within 12 months of permanency order or last permanency review. See p.15 for more information Termination of Parental Rights Hearing: To determine whether the parental rights of the child s parents should be terminated. Iowa Code , See p.16 for more information Termination Review Hearing: To determine whether the guardianship and custody orders entered at the termination hearing remain in the child s best interests, and to determine if the guardian is making every effort toward establishing a permanent placement for the child by adoption or otherwise. 3

4 TEMPORARY REMOVAL HEARING Purpose Iowa Code To determine whether a child should continue to be removed from the child s home due to imminent risk of harm. Hearing must be within 10 days of removal. What to Consider When determining whether to remove a child from their home, the following must be taken into consideration: Imminent risk of harm to the child is present Reasonable efforts to avoid removal Continuation in home contrary to child s welfare Cannot return child home or place with noncustodial parent. Consider whether services would alleviate the necessity of removal. Consider need for medical exam or treatment for child. Who is Involved Persons always present at hearing Judge or judicial officer Parents whose rights have not been terminated. This includes putative fathers. Relatives with legal standing or other custodial adults Assigned case worker County attorney Attorney for parents Childs attorney Guardian ad Litem-GAL (usually same person as child s attorney) 4

5 Court Appointed Special Advocate (CASA) Court Reporter or suitable technology Security personnel Persons whose presence may be needed at hearing Age appropriate children Extended family members Judicial case management staff Law enforcement officers Service providers Adult or juvenile probation or parole officer Other witnesses. Decisions that Should be made at Temporary Removal Hearing Should the child be returned home immediately or kept in foster care pending further hearings? What services will allow the child to remain safely at home? Will the parties voluntarily agree to participate in such services? Has the agency (DHS) made reasonable efforts to avoid placement of the child outside the home? Are responsible relatives or other responsible adults available to assume care of the child? Is the placement proposed by the agency the least disruptive and most family-like setting that meets the needs of the child? 5

6 Are restraining orders, or orders expelling an allegedly abusive parent from the home appropriate? Are orders needed for examinations, evaluations, or immediate services? What are the terms and conditions for parental visitation? Activities that should take place at Hearing Reviewing notice to missing parties and relatives Serving the parties with copy of the petition Advising parties of their right. Reports to the courts should describe all circumstances of removal, any allegations of abuse or neglect, and all efforts made to try to ensure safety and prevent need for removal. If the Child is Placed Outside the Home Describe who is to have custody and where the child is to be placed Specify why continuation of child in the home would be contrary to the child s welfare -- *required to be eligible for federal matching funds Specify whether reasonable efforts have been made to prevent removal of child from parental home. Make sure there is a DHS plan for visitation. Whether or not Child is Returned Home Specify any expectations the Court may have on any party prior to adjudication. 6

7 Set time and date of next hearing most likely adjudication. REMOVAL OF PHYSICAL/SEXUAL ABUSER Purpose Iowa Code Hearing on order removing adult alleged to have physically or sexually abused a child from the child s home. May be obtained ex parte by a person authorized to file a petition or the court on its own motion. Must show probable cause that the abuse has occurred and danger exists to the child. ADJUDICATORY HEARING Purpose Iowa Code To determine whether the child meets the statutory grounds for a child in need of assistance and whether the court s aid is required. What to Consider The petitioner has the burden of proving the allegations by clear and convincing evidence. As a general rule, only evidence which is admissible under the rules of evidence is admitted. The court must find that the court s aid is in fact necessary. Under Iowa Code (8), the court may dismiss a petition at the adjudicatory stage. A child can be adjudicated a CINA based on a delinquent act if the circumstances established by clear and convincing evidence one of the 7

8 In Interest of W.R.C., 489 N.W.2d 40 (Iowa App. 1992). Special Hearsay Exception There are special hearsay exceptions for social reports o Any report, study, record, or other writing made by the Department of Social Services, a probation officer, peace officer or hospital is admissible over hearsay objection if found by the court to be relevant and material. Iowa Code (6) o Such documents should be given weight according to the facts and circumstances of their making. The presence of supporting witnesses is still desirable to afford opportunity for crossexamination and in support of adjudication. What should be decided Which allegations of the petition have been proven by clear and convincing evidence. Whether there is a legal basis for continued court and agency intervention Whether reasonable efforts have been made to prevent the need for placement or to safely reunify the family If the dispositional hearing will not occur within a short time after the adjudication hearing, additional matters should be considered: Determine where the child is to be placed prior to disposition hearing 8

9 Order further testing or evaluations of the child or parents in preparation for the dispositional hearing Make sure that DHS is, in preparation for disposition, taking prompt steps to evaluate relatives as possible caretakers, including relatives from outside the area Order the alleged perpetrator to stay out of the family home and have no contact with the child Direct DHS to continue its efforts to notify noncustodial parents, including unwed fathers, of the Court action. When the child is to be in foster care prior to disposition, set terms for visitation. Findings of fact and conclusions The court s written findings of fact and conclusions of law at the adjudication hearing should Reflect the reasons for state intervention Provide sufficiently detailed information to justify DHS and court choices for treatment and services. State the reasons that continued removal of the child from parental home is necessary, if the child is removed. Inform the parents that a consequence of continued removal of the child may result in termination of parental rights. 9

10 PHYSICAL OR MENTAL EXAMINATION/SUBSTANCE ABUSE EVALUATION HEARING Purpose Iowa Code To determine whether a physical or mental examination or substance abuse examination of either the child or the parent is necessary. What to Consider Prior to adjudication, the court may order the juvenile to be evaluated, on an outpatient basis only; however, parties may seek inpatient evaluation on a voluntary basis. After adjudication, an inpatient evaluation may be ordered, if necessary Subsequent to adjudication, the court may order an evaluation of any parent, guardian or custodian if that person s ability to care for the child is at issue Iowa Code (2) DISPOSITION HEARING Purpose Iowa Code To determine the custody, placement, supervision and services to be provided to a child adjudicated in need of assistance. What to consider Disposition hearing should be held as soon as practicable after the adjudicative hearing. All relevant and material evidence shall be admitted. The dispositional orders must be specific about the category of statutory disposition desired and should include the reasons for the court s disposition. 10

11 The court must order the least restrictive, most appropriate disposition considering all the circumstances of the case. The main objective is to assure the child the most safe and secure placement consistent with his or her best interests. In Interest of A.E.O., III, 437 N.W.2d 238 (Iowa 1989). Dispositional orders should state all reasonable expectations to be placed on parents and services to be provided. The court has three choices when concerning the legal custody of a juvenile: o Suspend judgment, continuing the proceedings for up to twelve months, subject to terms and conditions imposed to assure the proper and protection of the child Iowa Code o Conditionally permit the child to stay in the custody of the parent where the child was living at the time of the filing of the petition Iowa Code o Transfer legal custody to one of the alternate placements Iowa Code Reports submitted to the court Case permanency plan should include: Statement of family changes needed to correct the problems necessitating state intervention Description of services to be provided to assist the family A description of actions taken by parents to correct identified problems 11

12 What should be decided What is the appropriate long term plan for the child, and what services should be offered to assist the family. Where should the child be placed Does the agency proposed case permanency plan address the problems and needs of the child and parents? Have reasonable efforts to eliminate the need for placement been made? When will the case be reviewed? Findings of fact and conclusions Use statute to determine custody of the child and legal disposition of the case Specify why continuation of the child in the home would be contrary to child s well-being (if applicable) Approve, disapprove or modify agency s proposed case plan Specify whether reasonable efforts have been made to prevent or eliminate the need for removal from parental home. Specify terms of visitation Set date and time for next hearing REVIEW HEARING 12

13 Purpose Iowa Code (9) To determine whether the child should be returned home, an extension of the placement should be made, a permanency hearing should be held, or a termination of parental rights proceeding should be initiated. What to Consider Must be held within six (6) months of dispositional hearing which transfers custody. What should be Decided Whether there is need for continued placement of a child outside his/her home Whether the court approved, long term permanency plan for the child remains the best plan Whether DHS is making reasonable efforts to rehabilitate the family and eliminate the need for placement of the child outside his/her home Whether services set forth in the case plan and the responsibilities of the parties need to be clarified or modified due to the availability of additional information or changed circumstances. Whether the child is in an appropriate placement which adequately meets all physical, emotional and educational needs. Whether any additional court orders need to be made to move the case toward successful completion When a permanency or other review hearing needs to be set. Court s conclusions and Findings of Fact 13

14 Findings why the child is in need of continued placement outside of parents home or continued court supervision, including specific risks to the child. Set forth findings as to whether and why family reunification and an end to court supervision continues to be the long term case goal. Set forth findings as to whether DHS has made reasonable efforts to eliminate the need for placement, with specific findings as to what actions the agency is taking. Set forth detailed findings of fact and conclusions of law as to whether the parents are in compliance with the case plan and identify specifically what further actions the parents need to complete. Set forth orders for DHS to make additional efforts necessary to meet the needs of the family and move the case toward completion. Approve proposed changes in the case plan and set forth any court-ordered modifications needed as a result of information presented at the review. Make any other orders necessary to resolve the problems that are preventing reunification or the completion of another permanent plan for the child. Set date and time of next hearing if needed. PERMANENCY HEARING Purpose Iowa Code To determine whether the child can be returned home, termination be filed, placement of child and services continued for an additional six months, or other permanency placement ordered and entered. 14

15 What to Consider Hearing must be held within thirty (30) days of a finding of aggravated circumstances, which waives reasonable efforts. Otherwise, hearing must be held within twelve (12) months of child s removal from parents home. What Should be Decided If the child can be returned home If a termination of parental rights petition should be filed If guardianship and custody of the child should be transferred, or another planned permanent living arrangement be sought If foster care, or other placement outside the home, should be extended for an additional six months, with the continued goal of family reunification. Permanency Review Hearing Purpose Iowa Code To determine whether the Permanency Order should be continued, modified or terminated. What to Consider Hearing must be held within twelve (12) months of permanency order or last permanency review Termination of Parental Rights Hearing 15

16 Purpose Iowa Code , To determine whether the parental rights of the child s parents should be terminated, so as to free the child for adoption or other permanent placement What to Consider Must be heard by the Juvenile Court The State must prove the allegations of termination of parental rights petition by clear and convincing evidence. This includes the requirement that before the court may terminate the parental rights there must be clear and convincing proof that the child will suffer harm in a manner specified in (Iowa Code) section 232.2(6). In the Interest of J.S., 427 N.W.2d 162 (Iowa 1988). Burden is on the State In the Interest of C. & K., 322 N.W.2d 76 (Iowa 1982); In the Interest of T.D.C., 336 N.W.2d 738 (Iowa 1983) The threat of probable harm will justify termination and the perceived harm need not be the one that supported the child s initial removal from the home - if any one of the definitional grounds are met for a CINA, this is enough to terminate In Interest of M.M., 483 N.W.2d 812 (Iowa 1992). The court must determine if the parents have forfeited their protected interests that all the criteria for termination have been satisfied If parental rights are terminated o Placement of children with DHS o Placement with a suitable child-placing agency o Placement with a relative or suitable person 16

17 There is no statutory preference for placement of children with a relative upon termination of parental rights; the paramount concern is the best interest of the children In Interest of R.J., 495 N.W.2d 114 (Iowa App. 1992) Iowa Code sets forth the various grounds for termination of parental rights. Mental disability standing alone is insufficient for termination, but it is a factor to consider. What should be Decided Whether the statutory grounds for termination of parental rights have been satisfied Whether termination is in the best interests of the child Court s Conclusions and Findings of Fact Indicate whether or not termination of parental rights is granted Address whether the grounds for termination were satisfied and, if so, whether termination was in the best interests of the child Be sufficient for the purpose of appellate review Set schedule for subsequent judicial review 17