ABUSE AND NEGLECT
An "abuse and neglect" case or child protective proceeding is when Child Protective Services (CPS) files a petition with the court, asking the court to take "jurisdiction" over the parents' child or children, and sometimes asking for an order removing the children from the parents' home. The grounds for filing such a petition include improper supervision, criminality within the home, prior CPS involvement, domestic violence, child abuse, unsuitable home conditions, etc. Sometimes, if the allegations against the parents are severe enough, such as severe physical or sexual abuse towards the child, the Department of Health and Human Services (DHHS) will request that the court terminate the parents' parental rights from the onset of the case.
Once the petition is filed, the parents are summoned to court for a preliminary hearing that usually takes place before an attorney-referee. At this hearing, the court has to make a determination if: 1. there is there probable cause to authorize the petition, and if so, 2. determine if the child should remain in the home with the parents, be placed with a relative, or be placed with a non-relative foster home while the case is pending. If the petition is "authorized," the case continues with additional hearings, typically in front of the judge assigned to the case. Before the court can order the parents to participate in and benefit from services to rectify the issues in the household, the court has to "take jurisdiction" over the child. This can be done by either the parents admitting to certain allegations contained in the petition by way of a plea, or by a bench or jury trial. The jury or judge (if a bench trial) must find by a preponderance of the evidence that one or more of the allegations in the petition are true and fit within the statutory framework that authorizes the court to take jurisdiction over the child or children. Note that "by a preponderance of the evidence" standard is the burden of proof typically used in civil cases, unlike the much higher "beyond a reasonable doubt" standard used in criminal matters.
Once the court takes jurisdiction, the court orders the parents to participate in services and benefit from the services provided by DHHS. These services usually include drug screening, parenting classes, counseling, psychological evaluations, and assistance with maintaining employment and housing. Depending on the initial severity of the abuse or neglect, as well as the participation in services and progress made by the parents, the child may be returned home relatively quickly, or it may take months in order for the child to be placed back in the home with a parent. If a significant period of time goes by and a parent fails to substantially comply with and benefit from services, the court may direct DHHS to file an amended petition seeking to terminate a parent's parental rights.
If the petition seeks to terminate parental rights from the outset of the case, or, if a supplemental petition is filed after a parent fails to comply with and benefit from services, the court can only terminate the parental rights of a parent through a trial or if a parent voluntarily releases his or her parental rights. At a trial, the agency (DHHS) must prove by clear and convincing evidence (a burden of proof higher than "preponderance of the evidence, but lower than "beyond a reasonable doubt") that there are sufficient grounds under the applicable statute for the court to terminate a parents rights. If the agency does meet that burden, the court must still find by a preponderance of the evidence that it would be in the child's best interests to terminate the parent's rights. Parents are not entitled to jury trials at this stage, meaning that the judge makes these findings.
These abuse and neglect cases can be very frustrating for parents. They have the "look and feel" of a criminal case, even though such cases are technically civil matters. You as a parent have an inherent right to parent your child, and, if the state is going to interfere with this right, you are entitled to certain protections. One being the appointment of an attorney if you cannot afford to hire one. If you decide to enter into a plea in order to allow the court to take jurisdiction as described above, the court must read you your rights on the record. Sounds like a criminal case, doesn't it? The frustrating part is that because these are technically civil cases, the burdens of proof used in these proceedings are lower than that used in criminal trials.
Parents also many times grow frustrated with the process after the court takes jurisdiction. The case worker assigned to your case may be relatively young and inexperienced. Some case workers can be difficult to get a hold of, and it takes a number of phone calls or emails to get a response. You may have confusion over what the case worker expects of you. Your case might be reassigned to a different worker multiple times throughout the course of your case.
For these reasons, it is important to have an attorney who is familiar not only with the procedure utilized in these cases, but one who knows what the agency and court expects of you as a parent. Additionally, it's not uncommon to see petitions that are "weak" and lack significant allegations to permit the court to take jurisdiction over your child. MCV Law has experience successfully challenging baseless abuse and neglect petitions. And, for those cases that truly deserve court intervention, MCV Law will assist you in going through the process and will make sure you are not left in the dark as to what is expected of you in order to keep your parental rights in tact.
If you are a parent who is currently involved in an abuse and neglect case, contact us today to discuss your options.