Thursday, January 3, 2013

INTRODUCTION TO DEPENDENCY PROCEEDINGS

  Dependency cases are unique judicial proceedings. Unlike most civil and criminal cases, where the court’s responsibility ends when a final judgment is entered, a judicial finding of dependency is only the beginning of the case. Applicable federal and state laws[1] require that the juvenile court exercise ongoing oversight responsibility to ensure timely achievement of the ultimate goal of a safe, permanent home for every dependent child.

  In cases filed by the Department of Economic Security, Child Protective Services (CPS), this responsibility extends beyond the court to the case manager, parents, attorneys, Court Appointed Special Advocates (CASA), Foster Care Review Boards (FCRB) and other participants in the proceedings. Among other things, the judge must

· Hold required hearings within statutory timeframes

· Determine what services are needed to reunify the family

· Determine whether CPS is making reasonable efforts to provide those services

· Ensure that the child is in a safe placement while the case is pending

· Determine whether parents are complying with the case plan

· Approve a permanent case plan if the family cannot be reunified

· Ensure that CPS is making reasonable efforts to achieve the permanent case plan

These materials will briefly describe the process by which a child comes into care and dependency proceedings are initiated in cases filed by CPS.[2] They will also outline the judicial process, including a description of each hearing and the key decisions that must be made by the judge. Effective exercise of judicial oversight will also require that the judge have a working knowledge of the child welfare and behavioral health systems, child development, mental health, substance abuse and other issues that commonly arise in these cases. Every judge should also be familiar with the “Resource Guidelines: Improving Court Practice in Child Abuse and Neglect Cases” published by the National Council of Juvenile and Family Court Judges.

TIMELINE FOR DEPENDENCY PROCEEDINGS

The goal of dependency proceedings is to place the child in a safe, permanent placement as soon as possible. In order to achieve that goal, both state and federal law create a timeframe within which certain hearings must be held and decisions made. Essentially, parents have one year in which to make the changes in their lives that will permit the safe return of their children. A permanency hearing must be held within one year after the child is removed. If the court finds that the child cannot be safely returned, it must determine the appropriate permanent plan.

Federal funding of foster care placements and other services to dependent children is contingent upon the court’s finding that CPS has met its obligations to provide services to families and implemented a permanent plan for the child within the statutory timeframe. For that reason – and because early placement in a safe, permanent home is critical to a child’s well being – it is imperative that the court hold hearings and make relevant decisions in compliance with the law.

The following chart sets forth a typical timeframe for dependency proceedings, including the specific limitations created by statute. The findings or decisions that must be made will be identified in the discussion of each hearing.

DEPENDENCY TIMELINE


THE DEPENDENCY PETITION

The Court’s involvement in dependency proceedings begins when a petition is filed. “Any interested party” may file a dependency petition. Usually the petitioner is CPS, but it may be a grandparent, a non-custodial parent or any other person who is concerned for the welfare of the child. The petition must be verified and, if the child has been removed from the physical custody of the parent, it must be filed within 72 hours of the removal.

The petition must:

· Allege specific facts to support a finding that the child is dependent

· Warn the parents that the proceeding may lead to a termination of their parental rights

What is a dependent child? The law gives four definitions to the term “dependent child.” Most cases fall under two categories, including a child found by the court to be:

· In need of proper and effective parental care and control and has no parent or guardian, or one who has no parent or guardian willing to exercise or capable of exercising such care and control, OR

· Destitute or who is not provided with the necessities of life, including adequate food, clothing, shelter or medical care, or whose home is unfit by reason of abuse, neglect, cruelty or depravity by a parent, a guardian, or any other person having custody or care of the child.

The term also includes a child under the age of eight who is delinquent or incorrigible, and a child who is incompetent and has committed one of a prescribed list of serious criminal offenses.


TEMPORARY ORDERS

A dependency petition will usually request that the court issue temporary orders regarding the placement and care of the child. Before issuing such orders, the court must review the petition and the affidavit to determine if the facts alleged support a finding that “reasonable grounds exist to believe that temporary custody is clearly necessary to protect the child from suffering abuse or neglect.”

Temporary orders typically requested by CPS include the following:

· The child is made a temporary ward of the court

· DES is given temporary legal custody

· Dates are set for the preliminary protective hearing and initial dependency hearing

· DES is ordered to serve the petition and notice of hearing

· Parents are advised of their right to counsel

· Counsel is appointed for the child

· Notice is given to the Foster Care Review Board

In so-called “private” dependencies filed by individuals, the court may enter such orders as it considers appropriate to ensure that the child is in a safe temporary placement. The court may also order CPS to investigate the case and report to the court at the first hearing.

Key decisions you must make:

· Has the petitioner shown reasonable grounds to believe that temporary custody is clearly necessary to protect the child from suffering abuse or neglect?

· Should the child remain in the temporary custody of CPS or, in private cases, the petitioner?

· In private cases, should CPS be ordered to investigate?

· What other orders are necessary to ensure the child’s safety?


PRELIMINARY PROTECTIVE HEARING

The first hearing in dependency proceedings is the preliminary protective hearing (PPH). This hearing must be held five to seven working days after the child has been taken into custody. For good cause, the court may continue the hearing for no more than five days. The CPS case worker is required to give notice of the date and time of the hearing to the parents after the child is removed.

The primary purpose of this hearing is to determine:

· Whether continued temporary custody is clearly necessary to prevent the child from suffering abuse or neglect

· If yes, where the child shall be placed and what visitation shall occur with the parents

· What services should be provided to the parents and the child

The investigative case worker is required to file with the court an initial report and case plan one day prior to this hearing and disclose the same to all parties. The report should set forth the details of the investigation, the efforts made to prevent removal of the child, the reasons why the child was taken into care, and the current status of the child. Additional disclosure may include police reports, medical records, prior CPS records and similar materials.

Ideally, a system should be in place to appoint counsel to represent indigent parties prior to this hearing. Counsel should meet with their clients prior to the hearing, preferably outside the courthouse.

The law requires that a prehearing conference be held immediately before the PPH so that the parties can attempt to reach agreement on the issues of placement, visitation and services. All parties and their lawyers must attend this conference. Unless otherwise ordered by the court, relatives may also attend, as well as other interested parties such as friends or counselors. The court may also permit the child to attend. Once the conference is completed, the participants move directly into court.

A lot of business must be conducted during the PPH. Initially, the court must

· Make sure that the parties present are served in court (as the statute requires)

· Set an initial hearing for parents not present and order the petitioner to complete service

· Determine whether this case is subject to the Indian Child Welfare Act (ICWA) and, if yes, whether appropriate notice has been given to the tribe

· If not done previously, appoint counsel to represent indigent parents

· Determine whether counsel have met with their clients prior to the hearing

· Determine whether counsel for the child has seen the child in the child’s placement

· Ensure that the parties are advised of their trial rights

· Determine whether to request that a Court Appointed Special Advocate (CASA) be assigned to the case

· Determine whether any party requires the appointment of a guardian ad litem

· Determine whether paternity has been established

The court will then review any agreements that have been reached in the prehearing conference. The court must independently determine whether these agreements ensure the safety of the child.

Key decisions you must make:

· Should the child be returned to the parents? Is there probable cause to believe that continued temporary custody is clearly necessary to prevent abuse or neglect pending the determination of dependency? If there is no agreement on placement outside the home, the court must conduct an evidentiary hearing on the probable cause issue. Hearsay is admissible, including the allegations of a verified petition, statements of those who will be present at an adjudication, and reports of experts.

· Can the child be returned home with services in place? If so, the court should order CPS to provide those services and order the child returned when they are in place. In private cases, the court may order the parties to participate in services that will facilitate family reunification.

· If the parents waive a review of temporary custody, or if the court finds probable cause, where will the child be placed? Have relatives come forward to offer a home to the child? If so, the court should order CPS to do a background check and home study and give them discretion to place the child if the results are positive. If the child is in a foster placement, is it appropriate to meet any special needs the child may have?

· What if any visitation will the parents have with the child? Where will it occur? How often? Supervised or unsupervised? Who will provide transportation?

· Unless the court finds it contrary to the child’s best interest, the court must order CPS to provide reunification services to the family. The court must review the initial case plan and any changes agreed to during the prehearing conference. If the court finds the services to be necessary and appropriate, it must order CPS to provide them. The court should also review the case plan with the parents to ensure that they understand what is expected of them.

· In private cases, the court must determine whether CPS should become involved. If the court previously ordered CPS to investigate, the worker should be present at the hearing with a report. If CPS believes that a dependency exists, they may be ordered substituted as the petitioner. Whether or not CPS becomes involved, the court may order the parties to participate in services that will facilitate family reunification.

Additional Issues:

In some cases, it may be appropriate to enter protective orders prohibiting contact between the child and a parent. The court may also order that any benefits received on behalf of the child be transferred to CPS.

Special findings:

Under federal law, the court must make a specific finding as to whether CPS has made reasonable efforts to prevent or eliminate the need for removal of the child, and whether services are available that would eliminate the need for continued removal.

If the case is subject to ICWA, the petitioner must prove (and the court must find) by clear and convincing evidence that “active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful.”

Additionally, the petitioner must present testimony from a qualified expert witness, that is, one with knowledge of the child rearing practices of this tribe.[3] The court may not order continued foster placement unless there is clear and convincing evidence, including this expert testimony, that “continued custody of the child by the parent … is likely to result in serious emotional or physical damage to the child.

Plea and Disposition:

Some parents may be prepared to admit to the petition at the PPH. If so, the court must ensure that the plea is knowing and voluntary. The court may proceed with disposition orders after accepting the plea and adjudicating the child dependent. It is preferable, however, to set the matter off so that initial assessments can be completed and appropriate services recommended. The disposition hearing must be set within 30 days of the adjudication. The court should clearly identify what tasks should be completed prior to that hearing (e.g., completion of psychological examinations, home studies, urinalysis testing, etc.)

If the parent enters a denial, the court must set the matter for a pretrial conference, mediation or a settlement conference. Because the law requires that the adjudication be completed within 90 days from service, this should be set as soon as possible.


INITIAL DEPENDENCY HEARING

This hearing is held only for parents or guardians who did not appear at the PPH, and must be within 21 days after service of the petition. The hearing may be continued for good cause and, if service must be accomplished by publication, the hearing may be set to allow sufficient time to complete publication. If the parent does not appear and the court finds that the parent was properly served, the court may enter a default judgment. If the parent appears, the court must advise him or her of the right to counsel and appoint a lawyer if requested and the parent is indigent. The court must also advise the parent of his or her right to trial on the petition.

If the parent wishes to enter an admission to the petition, the court must determine that the plea is knowing and voluntary. If the plea is accepted and the child adjudicated dependent, the court must either proceed with disposition or set a separate hearing for that purpose within 30 days.

If the parent denies the petition, the court must set the matter for settlement conference, pretrial conference or mediation. In setting future hearings, the court must keep in mind the statutory requirement that the adjudication be completed within 90 days after the child was removed.

Key decisions you must make:

· Did CPS make reasonable efforts to prevent or eliminate the need for removal of the child from the home?

· Are services available that would eliminate the need for continued removal?

· What services are needed to reunify the family? Order CPS to make reasonable efforts to provide those services, UNLESS it would contrary to the child’s best interest.

· In private cases, order the party to participate in services as appropriate.


Settlement, Mediation, and PRETRIAL Conferences

Before an adjudication hearing can be held, the law requires that the parties attempt to reach a non-trial resolution of the case through a settlement conference, mediation or pretrial conference. No specific procedure is required, and the court has the discretion to pursue what it believes to be the appropriate course. Whatever method is chosen, however, the court must keep in mind the 90-day time limit for adjudication in setting the dates.

If the court sets a settlement conference, it may be useful to order the parties to submit memoranda in the manner provided for civil cases in Rule VI of the Uniform Rules of Practice. Similarly, the court may order the preparation of pretrial statements prior to a pretrial conference to narrow the issues that must be tried.

Mediation is often useful ins resolving issues in dependency cases, and some courts have mediators on staff for this purpose. Mediation may also be sought through the Office of the Attorney General. The court should set a status hearing as soon as possible after the mediation so that the matter can proceed to disposition or dismissal (if there is an agreement) or adjudication within the statutory timeframe.

Commonly, the parties will reach agreement on changes to the factual allegations of the petition, and the parents admit or do not contest the amended petition. The court must determine whether the allegations provide a factual basis for a finding of dependency, and that the admission is done knowingly, intelligently and voluntarily. In making that determination, the court should ensure that the parents understand exactly what services they are expected to complete successfully in order to regain custody of their children. The court should also secure their understanding that failure to participate successfully may lead to a termination of their parental rights.

Key decisions you must make:

· If no agreement is reached, set the adjudication hearing within the statutory limits

· If the parents admit or do not contest, determine whether the plea is knowing, intelligent and voluntary, and supported by a factual basis

· If the child is adjudicated dependent, conduct the disposition or set a disposition hearing within 30 days


DEPENDENCY ADJUDICATION

If the parties are not able to achieve a non-trial resolution of the case, a contested dependency adjudication hearing must be set. This hearing must be COMPLETED within 90 days after service. The hearing may be “extended” for up to 30 days for good cause or in extraordinary cases as prescribed by the supreme court.

The dependency adjudication is conducted in the same manner as a civil trial. If the parent or guardian fails to appear and was previously advised that the matter would go forward in his/her absence, the court may proceed with the adjudication. The burden is on the petitioner to prove the factual allegations of the petition by a preponderance of the evidence. In making its findings, the court must consider the availability of services prior to the child’s removal, and the parent’s effort to participate in those services.

In ICWA cases, the petitioner must also prove by clear and convincing evidence that

· active efforts were made to provide remedial services and rehabilitative efforts to prevent the breakup of the Indian family, but that these efforts were unsuccessful AND

· continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.

In order to support the second finding, the petitioner must present evidence from a “qualified expert” within the meaning of the statute. According to the guidelines of the Bureau of Indian Affairs, this may be 1) a tribal member recognized by the tribe a knowledgeable in tribal customs regarding family organization and childrearing practices, 2) a lay expert with similar knowledge and experience in the delivery of services to Indian children and families, or 3) a “professional person having substantial education and experience in the area of his or her specialty.”

Key decisions you must make:

· Has the petitioner met the burden of proof? If no, order the child returned to the parent and dismiss the petition. If yes, adjudicate the child dependent and award legal custody of the child to the petitioner.

· Should the court proceed with disposition or set a separate hearing? If a child is adjudicated dependent, the court must conduct a disposition hearing within 30 days. In some cases, the court and the parties may be ready to proceed with the disposition immediately following the adjudication. In other cases, the results of assessments or other information is needed in order for the court to enter appropriate orders. In those cases, the court should set a separate hearing.


DISPOSITION

Once a child has been adjudicated dependent, state law requires the court to enter certain orders regarding “the proper disposition of the case.” These orders set the direction of the case and outline what is expected of all the parties. They include:

· The case plan goal

· The placement of the child

· The services and tasks which must be completed before the child can be returned to the parent and/or the case dismissed

Ideally, any medical and/or psychological assessments previously ordered should have been completed, and the court should review those results as well as any other evidence regarding the child and family prior to entering dispositional orders. The court may have all the relevant information and may be prepared to proceed that the time of adjudication (whether by admission or following a contested hearing). If not, the hearing must be held within 30 days thereafter.

In most cases, all parties will agree that the goal is family reunification. If the court approves that goal, the focus of the disposition hearing should be on identifying the appropriate services CPS must offer and the tasks the parents must complete before the child can be safely returned home and the case dismissed. In some cases, the child will remain in the home, but services must be completed before the dependency can be dismissed. The court must review the case AT LEAST every six months to determine whether CPS is making reasonable efforts to achieve the case plan and whether the parents are complying. The date of the review hearing must be set at the conclusion of the disposition hearing.

In private cases, the court must determine whether there are any services available to facilitate reunification. The court may order parties to provide and/or participate in services, as appropriate. A review hearing must be set within six months.

In some cases, the court may find that efforts to reunify a child would not be reasonable and the court will not order CPS to provide services. In making this determination, the court must consider expert testimony that efforts to modify a parent’s behavior are unlikely to be successful and whether the parent has expressed an interest in reunification. The statute creates a presumption that reunification services should NOT be provided if the court finds by clear and convincing evidence that any one of certain enumerated circumstances exists. These generally include extreme cases such as prior murder of a child, physical or sexual abuse of a child, and others. If the court does not order reunification services, a permanency hearing must be set within 30 days of the disposition hearing.

Key decisions you must make:

· What is the case plan goal?

· If the goal is reunification, what services are necessary to achieve that goal? Order CPS to make reasonable efforts to provide those services or, in private cases, order the parties to participate in services as appropriate.

· Where will the child be placed while the case is pending?

· Set a review hearing NO LATER THAN six months from the disposition.

· If the goal is not reunification, set a permanency hearing within 30 days.


DEPENDENCY REVIEW

The purpose of the review hearing is to determine (in CPS cases) whether CPS is making reasonable efforts to provide services to the child and the child’s family to facilitate reunification or, if ordered, to achieve another permanent plan for the child. In all cases, the court must review the parents’ participation in services. Ultimately, the court must determine whether the child can be returned home safely and if the dependency can be dismissed.

A review hearing must be held at least every six months prior to the permanency hearing. Because the law requires that a decision on the permanent plan for the child be made at the end of one year, more frequent hearings are important to ensure that both CPS (or the private petitioner) and the parents are meeting their responsibilities. The case plan may need to be modified to meet changing or unanticipated circumstances. If the parents have abandoned the child or other circumstances warrant, it may be appropriate to set a permanency hearing before the end of the first year.

In addition to the parties, foster parents have a right to notice of the hearing and to participate. The same right extends to relatives who have filed a written notice with the court. The court may permit or direct that other persons be permitted to intervene or to participate.

In CPS cases, the court and all parties should receive a written report from the case worker identifying the services provided, parental participation, and the status of the child. By court rule, these reports are admissible if they were disclosed at least 30 days prior to the hearing and the case worker is available for cross-examination. The court should take testimony from the case worker and other witnesses, as appropriate. The court may also consider other evidence as admitted or stipulated by the parties. If a CASA has been assigned to the case, the court should also consider his/her report.

Key decisions you must make:

· Is the child still dependent? If no, order the child returned to the parent and dismiss the case. If yes, reaffirm prior orders of dependency and legal custody.

· In CPS cases, is CPS making reasonable efforts to provide services to facilitate reunification (or achieve another permanent plan)? If not, enter appropriate orders.

· Are the parents participating in services and complying with the case plan? Is the case plan goal still in the child’s best interest? If not, consider setting an earlier permanency hearing.

· Are the case plan services appropriate? If not, order necessary modifications.

· In private cases, determine whether reunification services are available, order participation if appropriate, determine what progress is being made toward reunification.

· Set the next review hearing and/or set a permanency hearing not later than 12 months after the date of the child’s removal from the home.

PERMANENCY HEARING

At this hearing, the court must decide what “permanent legal status” is the appropriate permanent plan for the child. If the court ordered at disposition that reunification services not be provided to the parents, this hearing must be held within 30 days. If reunification services are ordered, the hearing must be held within 12 months following the removal of the child from the home.

CPS is required to prepare a permanent plan for the court. The court should also hear any relevant evidence offered by the parties and consider the recommendations of the CASA, if one has been assigned to the case. If the court finds that the parents are participating in services but haven’t completed the case plan, it may conclude that the plan should remain one of reunification and give the parents additional time. Depending on the age and circumstances of the child, his/her relationship with the parents, and the availability of relative placements, the court may conclude that long-term foster care is the best plan. This affords the child the least sense of permanency, however, and is the least desirable option, and under federal law, this plan may be approved only upon a finding of “compelling reasons” why termination of parental rights would not be in the child’s best interest. In either case, a review hearing must be set. If the child will remain out of the home more than eighteen months after the permanency hearing, the review must be conducted at least once a year.

If the court finds that termination of parental rights or permanent guardianship is clearly in the child’s best interest as a permanent plan, the court must order CPS or the child’s attorney or guardian ad litem to file a motion for termination or guardianship within ten days of the permanency hearing. The court must also set an initial termination or guardianship hearing within 30 days. If the court orders termination, the court must also advise the parents of their right to a jury trial. The parents must exercise their right at or before the initial termination hearing.

Key decisions you must make:

· What permanent legal status is the appropriate permanent plan for the child?

· If the permanent plan is reunification, how much additional time will the parents be given to complete the case plan, and how soon should the case be reviewed?

· If the permanent plan is termination or guardianship, order the appropriate motion to be filed and set the initial hearing.

· Are there compelling reasons for approving another planned permanent living arrangement?


PERMANENT GUARDIANSHIP

In some cases, the most appropriate permanent plan for a child may be a permanent guardianship. Typically, this occurs in cases with older children who may be placed with a relative but have an ongoing relationship with a parent. An order establishing a permanent guardianship divests the parent of legal custody of the child but does not terminated his/her parental rights. The court may order approving a guardianship if it finds the following:

· Guardianship is in the child’s best interest

· The child has been adjudicated dependent

· The child has been in the physical custody of the prospective guardian for at least nine months (The court may waive this requirement for good cause.)

· In CPS cases, reasonable efforts were made to reunite the family and further efforts would be unproductive (The court may waive this requirement if reunification services were not ordered or reunification is not in the child’s best interest.)

· The likelihood that the child would be adopted is remote or termination of parental rights would not be in the child’s best interests

The burden of proof is clear and convincing evidence (beyond a reasonable doubt in ICWA cases).

Any party to a dependency proceeding may file a motion for permanent guardianship, and the court may order the motion to be filed if it determines at the permanency hearing that permanent guardianship is the best permanent plan for the child. The motion must be verified and must set forth the facts and circumstances supporting the permanent guardianship. The motion and a notice of hearing must be served on all parties pursuant to Rule 5(c) of the Rules of Civil Procedure. Additionally, a copy of the notice must be provided to the child’s physical custodian, any foster parent with whom the child has resided during the past six months, the prospective guardian, all persons entitled to notice under ICWA, and other persons as ordered by the court.


INITIAL GUARDIANSHIP HEARING

At the permanency hearing, if the court orders the case plan changed to permanent guardianship, it must order the motion filed within ten days and the set an initial guardianship hearing within 30 days. The statutes do not specify when hearings must be held if a motion is filed other than as a result of the court’s order following the permanency hearing.

At the initial hearing, the court must determine whether the motion has been served on all parties pursuant to Rule 5(c) of the Rules of Civil Procedure and whether notice has been given to those persons identified in the guardianship statute and, in ICWA cases, pursuant to that act. If requested, counsel must be appointed for indigent parents not already represented. Counsel must be appointed for the child as well if a guardian ad litem has not already been appointed.

The court must order an investigation of the factors which the court must consider in determining whether a permanent guardianship should be established. This investigation must also consider whether the prospective guardian is a fit and proper person and whether the best interests of the child would be served by establishing a guardianship. The investigation must be conducted by CPS or any other agency having custody of the child, or by an individual designated by the court. A report of the investigation must be submitted to the court prior to the final hearing. The court may also order additional investigation if necessary to its determination.

The guardianship hearing must be set within 90 days after the permanency hearing.

Key decisions you must make:

· Have the parties been served?

· Has notice of the hearing been given to other participants as required by statute?

· If the child is an Indian, has notice been given in accordance with ICWA?

· Has counsel been appointed to represent the child and indigent parents?

· Who will conduct the investigation required by statute? Is additional investigation necessary?

· Set the guardianship hearing.


GUARDIANSHIP HEARING

At this hearing, the court will hear evidence from the parties and consider the investigative report prepared pursuant to the court’s order. The court must also consider the wishes of any minor fourteen years or older.

If the court finds that grounds for the guardianship have been proven and that guardianship is in the child’s best interest, it may grant the motion. The order establishing the guardianship vests the guardian with all rights and responsibilities set forth in A.R.S. § 14-5209 unless otherwise ordered by the court. The court may include specific provisions for visitation between the child and the child’s parent, sibling or other relatives. The court may also include any other provision “necessary to rehabilitate the child or to provide for the child’s continuing safety and well-being.” Child support orders may also be entered. The court must also order the dismissal of the dependency action.

A review of the guardianship must be held within one year. If the child was in the custody of CPS, the court may order CPS to investigate and report to the court on the welfare and best interests of the child. In other cases, the court may designate an agency or individual to perform these tasks. Whether further reviews should be held is in the court’s discretion.

Key decisions you must make:

· Have grounds for establishing a guardianship been proven by the applicable burden of proof?

· Is the guardianship in the child’s best interest?

· Is the prospective guardian a fit and proper person to assume this responsibility?

· If the guardianship is established, should provision for visitation be incorporated into the order?

· Should child support be ordered?

· If the motion is granted, dismiss the dependency and set the first annual review hearing.


TERMINATION OF PARENTAL RIGHTS

Proceedings to terminate parental rights may be initiated in two ways: by motion in a dependency proceeding, or by petition in a separate proceeding. Although the cases get into court in different ways, the grounds for termination, the burden of proof, and the court proceedings are identical.

Termination proceedings may be ordered by the court in a dependency case if the court has held a permanency hearing, found that the child cannot be returned to the parents without a substantial risk of harm, and found that the appropriate permanent plan requires termination of parental rights. The court is then required by law to order CPS, the child’s attorney or the child’s guardian ad litem to file a motion alleging statutory grounds for termination within ten days after the permanency hearing. At the same time, the court must set the initial termination hearing within thirty days after the permanency hearing. Because the motion is part of an ongoing proceeding, the moving party is only required to serve the motion pursuant to Rule 5(c) of the Rules of Civil Procedure. Service must be completed at least ten days prior to the initial termination hearing.

Termination may also be sought through a separate proceeding initiated by petition. The petition may be filed at any time, regardless of whether a dependency case is pending, by “[a]ny interested person or agency that has a legitimate interest in the welfare of a child.” After the petition is filed, the clerk sets the initial termination hearing. Notice of the hearing must be served in the same manner as any civil action upon the parents, guardian or other person having legal custody of the child, any person standing in loco parentis to the child, the guardian ad litem for any party and, where applicable, the child’s tribe. Additionally, in ICWA cases, notice must be given as required by that statute. The initial hearing may occur no sooner than ten days after service is complete.

In petition cases, the court is required to order the preparation of a social study by CPS or an agency or person designated by the court. The study must address the circumstances alleged in the petition, the social history, the present condition of the child and parents, proposed plan for the child and any other factors “pertinent to the parent-child relationship.” The court may waive this requirement if it finds that this would be in the best interest of the child.


INITIAL TERMINATION HEARING

At this hearing, the court must determine whether the parents have been timely and properly served, and whether they intend to oppose the motion or petition to terminate their parental rights. In cases initiated by motion, service must be accomplished in accordance with Rule 5(c) of the Rules of Civil Procedure. In petition cases, service is governed by Rules 4.1 and 4.2 of the Rules of Civil Procedure. If the case is subject to the Indian Child Welfare Act, the court must also ensure that the parents, Indian custodian and tribe have been notified of the hearing in the manner prescribed by federal law.

If the court finds that parents have been properly served but fail to appear at the hearing, the court may find that the parents have waived their rights and are deemed to have admitted the allegations of the motion or petition. The court should take evidence on the grounds alleged for termination and whether termination is in the child’s best interest. If grounds and best interests are proven by clear and convincing evidence (or, in ICWA cases, beyond a reasonable doubt), the court may order termination. Additionally, in ICWA cases, the petitioner must prove beyond a reasonable doubt that active but unsuccessful efforts were made to provide services to prevent the breakup of the Indian family and that continued custody by the parent or Indian custodian is likely to result in serious physical or emotional damage. The latter finding must be supported by testimony from an expert qualified under ICWA. The order must include written findings supporting both jurisdiction and grounds, and must appoint a legal guardian for the child and fix responsibility for the child’s support. The same procedure should be followed if the parents admit or do not contest the motion or petition.

If the parents appear and contest the proposed termination of their parental rights, the court must advise the parents of their right to counsel and appoint a lawyer upon a showing of indigence. Counsel must also be appointed for the child. In motion cases, this should be the same lawyer that has represented the parent or child in the dependency proceeding. A guardian ad litem should also be appointed if the court has reason to believe that a parent is incompetent or is otherwise in need of one. The parents must also be advised of their right to a jury trial.

In dependency cases, the termination adjudication hearing must be set within 90 days after the permanency hearing. No similar requirement applies to petition cases. However, in both cases the court should set a pretrial or status conference prior to the date of the hearing. The parents must be admonished that failure to appear at such conference or at the termination hearing may result in a finding that they have waived their legal rights and are deemed to have admitted the allegations of the petition.

Key decisions you must make:

· Have the parents and other parties been properly and timely served?

· If the parents do not appear or do not contest, has the petitioner (or moving party) established grounds for termination and best interests by the appropriate standard of proof?

· If the parents appear and contest, are they entitled to appointed counsel? Do they need a guardian ad litem?

· Has counsel been appointed to represent the child?

· If the parents contest, set the termination hearing and a pretrial or status conference and admonish the parents regarding the consequences of their failure to appear.

· In petition cases, if the court has not already done so, order the preparation of a social study, unless waived.


TERMINATION HEARING

Whether initiated by motion or petition, the termination hearing proceeds as any contested civil matter, except that the hearing is closed to the public unless a parent requests that it be opened and the court grants the request. The burden is on the petitioner (or moving party) to prove by clear and convincing evidence at least one of the statutory grounds for termination AND that termination is in the child’s best interest. In ICWA cases, the burden of proof is beyond a reasonable doubt. Additionally, the petitioner (or moving party) must prove that active but unsuccessful efforts were made to provide services that would prevent the breakup of an Indian family and, with testimony from a qualified expert, that continued custody by the parent or Indian custodian would be likely to result in serious emotional or physical damage to the child.

If the parent fails to appear at the termination hearing and the court finds that the parent was given notice and advised of the potential consequences of failing to appear, the court may find that the parent has waived his/her legal rights and is deemed to have admitted the allegations of the petition. The court may take evidence as necessary, and may order terminating the parent-child relationship if the evidence meets the applicable burden of proof.

If termination is ordered, the court must appoint a guardian for the child and fix responsibility for the child’s support. If the court or jury does not terminate the parent’s rights, the court must dismiss the petition. However, the court may enter appropriate orders regarding the care and supervision of the child. Where a dependency case is pending, the court must also ensure that a review hearing has been set.

Key decisions you (or a jury) must make:

· Has the petitioner (or moving party) established grounds for termination and best interests by the appropriate standard of proof?

· If the court does not order termination of parental rights, what orders should be entered regarding the care and supervision of the child?

· If the court does order termination, who will be given legal custody of the child? Who will have financial responsibility for the child?

· What review hearings should be set?


[1] These materials are based primarily on the applicable Arizona statutes. See A.R.S. §§ 8-531, et seq., 8-801, et seq. The judge must also be familiar with the applicable federal statutes, which include the Adoption Assistance and Child Welfare Act of 1980 (P.L. 96-272), the Adoption and Safe Families Act of 1997 (P.L. 105-89, “ASFA”), and the Indian Child Welfare Act (25 U.S.C. §§ 1912 et seq., “ICWA”). Each of these statutes prescribes judicial findings that must be made at specific points in the process. Additionally, ICWA imposes higher burdens of proof which must be satisfied if an Indian child is to be placed in foster care or the rights of the parents terminated.

[2] “Any interested person” may file a dependency petition. Although the judicial process is essentially identical in non-CPS, or “private,” dependency cases, the court is not required to make the findings required by P.L. 96-272 or ASFA.

[3] The “BIA Guidelines to ICWA,” published November 18, 1 979, identify the following “characteristics” of persons most likely to qualify as experts: 1) member of the child’s tribe recognized by the tribal community as knowledgeable in tribal child rearing practices; 2) a lay expert with substantial experience in the delivery of child and family services to Indians and extensive knowledge of prevailing tribal child rearing practices, 3) a professional person having substantial education and experience in the area of his or her specialty.