Safety and the Legal Process Part 1: The Temporary Custody Hearing

Introduction

Here are three common observations related to CPS safety intervention and court involvement. First of all, virtually all cases that CPS takes to court are done so because of threats to child safety. Secondly, often CPS prepares for and presents a case to the court without effectively expressing the need for court authority based on fundamental safety intervention concepts. And lastly, generally speaking those who participate in the court process may not fully understand concepts, practices and decision making that comprise safety intervention. Confusion about the differences between maltreatment, risk of maltreatment and threats to child safety is fairly common among a wide spectrum of professionals associated with the court process. This includes judges, agency/ state’s attorneys, defense attorneys, GALs and CASA representatives. To confuse matters further, even CPS caseworkers and supervisors are often not well schooled in how to effectively use safety intervention concepts when taking a case to court. This problem exists in spite of the fact that CPS staff are those most likely to have been exposed to the state of the art for the longest time and who, presumably, are using it in their daily work.

The apparent disconnect in the use of safety intervention concepts when invoking court involvement is no minor issue for everyone involved most notably the family and the child’s caregivers. This month we begin a two part series concerned with using safety concepts in presenting cases to the court. This article addresses initial CPS intervention, which results in temporary – immediate protective action that requires court involvement. Our concern is how to effectively communicate safety concepts to the court during the temporary custody hearing that justify child removal.

The following case example provides an illustration of how safety concepts and criteria can be used in court and subsequently support CPS practice decision-making. Specifically we will attempt to demonstrate how safety related information can be provided to the court in order to promote and achieve necessary judicial decisions.

(Note: We recognize that the legal process, legal concepts, rules of evidence, etc. and all the CPS responsibilities related to invoking the legal process is complicated and far too large an undertaking for two articles. So, for this two part series we will keep our attention focused on the use of child safety concepts as the basis for information presented in temporary custody and adjudicatory hearings only.)

Maria Delgado

Maria Delgado has an 8-year-old son named Jose. The school reported to CPS that Jose’s teacher noticed bruises on his face and on both arms. Jose was not explicit about the bruising but indicated that his mother had grabbed and hit him the previous evening. Jose has appeared at school in the past with unexplained bruises. This is Jose’s first year attending this school and the first report to CPS from the school.

CPS interviewed Jose at school following lunch. The interview revealed that Maria, Jose’s mother, had exploded over the television being too loud and grabbed Jose by the upper arms and shook him repeatedly then slapped his face twice. The assault left “gripping” kind of bruises on Jose’s upper arms and a distinct handprint bruise on the left side of his face. Jose was extremely fearful about possible repercussions from CPS involvement. His affect was generally apprehensive; he was shy and hesitant in talking about himself, his mother and his situation. He is small for his age and while not frail he is physically vulnerable.

Maria was contacted by phone at her place of employment to identify a time when she could meet with CPS. She was evasive and indicated she would call back immediately. Within a few minutes she returned CPS’ call and was outraged. She refused to meet with CPS. She refused to discuss or explain Jose’s injuries. She demanded that Jose be allowed to take the school bus home.

CPS transported Jose home with an intention of intercepting Maria when she arrived home from work. Maria continued her hostile response to CPS and was totally uncooperative. After several attempts to engage Maria in a conversation about the current circumstances CPS advised her that the first and primary responsibility was to assure that Jose was protected until additional time could be spent understanding what was going on in the Delgado family. Maria objected to CPS involvement and refused to participate in planning for an immediate – temporary protective action. She did confirm that there was no one in town (relatives or others) that could assist in providing protective care of Jose.

Jose is in Present Danger

Following the exchange with Maria CPS determined that Jose was in present danger and must be protected while the initial assessment (investigation) continued. CPS judged that Jose’s situation was consistent with the definition of present danger. Present danger is an immediate, significant and clearly observable threat to a child occurring in the present. Using its standard for present danger CPS identified the following threats of present danger:

Present danger must be managed immediately so that the initial assessment (investigation) can proceed. CPS recognized that, given Maria’s reaction, a protective action was required. Reasonable efforts determined that Jose had no relatives or others who could provide for his immediate protection (same day as initial contact with the child). During the point of initial contact with the family, reasonable efforts to keep the child in the home or locate a less intrusive placement setting with relatives were unsuccessful because it was determined that the current circumstances and the need to promptly secure Jose’s safety were not conducive to the development of a sufficient in home protective plan and further there appeared to be no immediate viable resources (relative, friends, services, etc.) to prevent placement out of the home. This resulted in the necessary decision that CPS would place Jose in an emergency foster home while the initial assessment continued.

The Temporary Custody Hearing: Seeking Immediate Custody

CPS attempted to involve Maria in a discussion and plan to temporarily place Jose but Maria refused. Maria was fully informed of CPS’ intentions regarding the protective action to be taken and informed that follow up with her would occur within the following day. Jose was placed with an approved agency foster family.

In all states when removing a child in circumstances such as these CPS files an affidavit or petition that invokes court involvement. The petition results in a hearing. Although this first hearing is given a variety of names (e.g., shelter care, detention or temporary custody hearing) among states, it generally serves the same purpose: to determine whether Jose should be temporarily placed outside his home pending the ultimate disposition of the case. When a child is already in emergency out of home care like Jose, this hearing is used to decide whether this temporary custody arrangement should be continued. While court hearing time lines vary somewhat among the states, in most instances a temporary custody hearing is convened within 72 hours in order to determine whether CPS can detain a child in custody or must return a child to his or her caregivers. The emergency order petition must contain the basis for CPS maintaining physical custody of a child.

Presenting Present Danger

Our contention is that the basis for maintaining immediate temporary physical custody should usually if not always be related to safety – in this instance present danger.

Following Jose’s placement in emergency foster care CPS prepared a petition based on present danger. The petition contained the following facts:

CPS petitioned the court for physical custody of Jose pending completion of the initial assessment (investigation) in order to determine what is occurring in the Delgado family; to fully assess Jose’ safety; and if Jose is not safe to decide how best to assure Jose’ safety.

Reasonable Efforts

Federal law requires that the judge determine that reasonable efforts have been made to keep Jose in his home. The fact that CPS can be convincing about the existence of present danger and the need for protection of Jose while the initial assessment continues does not obviate this requirement of demonstrating what was done to explore options other than out of home placement. CPS reasonable efforts justification can be predicated on three positions:

The reasonable efforts conclusion is that CPS made reasonable attempts to involve Maria. Maria was totally uncooperative. Maria would not allow outside (service) resources to be involved. No family relatives or associates reside in the county.

The Judicial Determination

The temporary custody hearing results in a judicial determination that a child is in danger and that reasonable efforts have occurred but were not successful in protecting a child in his own home. The judge may make a temporary protective or removal order. When an emergency custody has already been initiated as in Jose’s situation, the court will either ratify the child’s removal or return him home.

We believe that the use of safety concepts, in particular present danger, provides a convincing CPS position that effectively empowers the court to make the necessary judicial determination. In the Delgado case the judge can clearly see the need for immediate – temporary protection and can understand it to be required in order to enable the initial assessment to continue. This judicial determination should be viewed and accepted by all parties to the case as temporary and subject to prompt re-examination once more information can be evaluated and brought to the court’s attention.

We mentioned that in most states the temporary custody hearing occurs within 72 hours – 3 days. In the Delgado case, Jose was removed on day 1 and a petition was filed requiring the temporary custody hearing. CPS should feel compelled to meet with Maria as promptly as possible – by day 2. It is likely that she would remain inaccessible in terms of participation but alternatively she could provide additional information that could be provided to the court at the hearing on day 3. That additional information could clarify the nature of the present danger and could have an effect on the judicial determination such as Jose’s early return home. Of course, we think that in the Delgado case that would be unlikely. However, what about other cases where temporary really was realized because of prompt CPS follow up? But that’s a subject for another article.

Next Month

In February 2005 we continue with the second part of the series Safety and the Legal Process. In that feature we will focus on the use of safety concepts during the adjudicatory hearing