Petition Under Child Protective Act by Levone

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									Petition Under Child Protective Act1 IN THE DISTRICT COURT OF THE ^^^^ JUDICIAL DISTRICT OF THE STATE OF IDAHO, IN AND FOR THE COUNTY OF ^^^^ IN THE INTEREST OF: ) ) ) ) ) ) ) Case No. PETITION UNDER THE CHILD PROTECTIVE ACT [AND MOTION FOR ORDER FOR REMOVAL OF CHILD][AND MOTION FOR PROTECTION ORDER]2

A Child Under Eighteen Years of Age

1. This petition is filed by _______________, [Idaho Department of Health & Welfare][ _______________ County Prosecutor] [Deputy Prosecutor for _______________ County][Deputy Attorney General].

2. This petition asks the court to determine that the child is [children are] within the jurisdiction of the Child Protective Act, Idaho Code Title 16, chapter 16. The child is [children are]: abandoned; abused; neglected; homeless; lacking a stable home environment; and/or within the court’s jurisdiction because of the court’s assertion of jurisdiction over another child, _________________[name], listed in this petition, and the child _________________[name] is living or has custodial visitation in the same household and has been exposed to or is at risk of being a victim of abuse, neglect or abandonment. The facts which bring the child [children] within the jurisdiction of the Child Protective Act (including the actions of each parent) [are described in the Affidavit of _________________, dated __________, which is attached to and incorporated in this petition] [are as follows: _________________________________ ].

3. The child is [children are] not currently in shelter care. [ALT] 3. The child is [children are] not currently in shelter care. This petition requests an Order for Removal of Child pursuant to Idaho Code §16-1611(4). This petition asks that a peace officer or other suitable person be authorized to immediately take the child [children] to a place of shelter care. This petition asks the court to schedule a shelter care hearing, to determine whether the child [children] should be placed in shelter care pending an adjudicatory hearing in this case. [ALT] 3. a. The child is [children are] currently in shelter care. The type and nature of shelter care is foster care. The child was [children were] placed in shelter care on _______________ at __________ [a.m.] [p.m.]. It was necessary to place the child [children] in shelter care [for the reasons described in the Affidavit of ______________,

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dated __________, which is attached to and incorporated in this petition] [because ___ ____________________________________________________________________ ]. This petition asks the court to schedule a shelter care hearing, to determine whether there is reasonable cause to believe the child is [children are] within the jurisdiction of the Child Protective Act, and to determine whether the child [children] should be placed in shelter care pending a hearing on this petition. b. The child’s [children’s] mother was notified of the placement on _________ by ___________________________. [ALT] b. The child’s [children’s] mother has not been notified of the placement, because ____________________________________________________. c. The child’s [children’s] father was notified of the placement on __________ by ____________________________. [ALT] c. The child’s [children’s] father has not been notified of the placement because ______________________________________________________________. d. The child’s guardian or other legal custodian was notified of the placement on __________ by ________________________. [ALT] d. The child’s guardian or other legal custodian was not notified of the placement because __________________________________________________. [ALT] d. The child has no guardian or other legal custodian.

4. This petition asks that the child [children] be placed in the legal custody of the Idaho Department of Health and Welfare or other authorized agency. This petition asks the court to schedule an adjudicatory hearing on this petition. This petition further asks the court to order the parent(s) to pay a reasonable amount each month for the support of the child [children] while the child is [children are] in the legal custody of the Idaho Department of Health and Welfare or other authorized agency. [ALT] 4. This petition asks that the child [children] be placed under the protective supervision of the Idaho Department of Health and Welfare in the child’s own home. This petition asks the court to schedule an adjudicatory hearing on this petition.

5. The child was [children were] removed from the home and/or the petition asks that the child [children] be removed from the home. a.3 It is contrary to the welfare of the child [children] to remain in the home. It is in the best interest of the child [children] to vest legal custody of the child [children] in the Idaho Department of Health and Welfare or other authorized agency. The supporting facts are [set forth in the Affidavit of _____________________, dated __________, which is attached to and incorporated in this petition] [as follows: _____ _____________________________________________________________________ _____________________________________________________________________.] b.4 Reasonable efforts were made prior to placement of the child [children] in shelter/foster care to prevent the need for the placement of the child [children] in shelter/foster care but were not successful in eliminating the need for placement of the child [children]. The supporting facts are[set forth in the Affidavit of

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____________, dated __________, which is attached to and incorporated in this petition] [as follows: ___________________________________________________________ ____________________________________________________________________ ]. [ALT] b.4 Efforts to prevent removal of the child from the home were reasonable given that the agency’s assessment accurately determined that no preventative services could have been safely made. The supporting facts are set forth in ____________________ , prepared by ______________, and dated ______________, which is incorporated by reference in this petition.

[OPT] 6. This petition asks the court to determine that the parent [parents] subjected the child [children] to aggravated circumstances. The aggravated circumstances [are described in the Affidavit of _______________, dated __________, which is attached to and incorporated in this petition] [are as follows: _______________ ____________________________________________________________________ ].

7. The name, birthdate, sex, and residence address of [the child] [each child] are __________________________________________________________________. [ALT] 7. At this time, the [name] [birthdate] [residence address] of the child [children] is [are] unknown, but the child was [children were] found within the State of Idaho, in _______________ County.] 8. a. The name and residence address of the child’s [children’s] mother are __________________________________________. [ALT] a. At this time, the [name] [residence address] of the child’s [children’s] mother cannot be determined. b. The name and residence address of the child’s [children’s] father are ___________________________________________. [ALT] b. At this time, the [name] [residence address] of child’s [children’s] father cannot be determined. c. There is no other person with sole or joint legal custody of the child [children]. [ALT] c. At this time, it cannot be determined if there is any other person with sole or joint legal custody of the child [children]. [ALT] c. The name and residence address of each other person with sole or joint legal custody of the child [children] are __________________________________. d. There is no other guardian or custodian of the child. [ALT] d. The name and residence address of the child’s [children’s] guardian or other custodian are __________________________________________. e. At this time, no parent, guardian, or other custodian of the child [children] can be found within the state. The name and residence address of an adult relative of the child [children], who is residing within the state, are _________________. [ALT] e. At this time, no parent, guardian or other custodian, or any adult relative, can be found within the state.

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9. A court has not adjudicated the custodial rights of the child’s [children’s] parents. [ALT] 9. A court has adjudicated the custodial rights of the child’s [children’s] parents, and the custodial status of the [each] child is _______________________. [ALT] 9. At this time, it cannot be determined whether a court has adjudicated the custodial rights of the child’s [children’s] parents.

10. The child is not an Indian child [children are not Indian children] within the meaning of the Indian Child Welfare Act, 25 U.S.C. §§ 1901 – 1963. [ALT] 10. At the present time, it cannot be determined whether the child is an Indian child [children are Indian children] within the meaning of the Indian Child Welfare Act, 25 U.S.C. §§ 1901 – 1963. [ALT] 10. The child is an Indian child [children are Indian children] within the meaning of the Indian Child Welfare Act, 25 U.S.C. §§ 1901 – 1963. The Indian tribe in which the child is a member [children are members], or in which the child is eligible to be a member [children are eligible to be members], is [name of Tribe]. [ALT] 10. The child is an Indian child [children are Indian children] within the meaning of the Indian Child Welfare Act, 25 U.S.C. §§ 1901 - 1963. At the present time, the Indian tribe in which the child is a member [children are members], or in which the child is eligible to be a member [children are eligible to be members], cannot be determined.

11. There are no other children living at or having custodial visitation at the home where the injury occurred to the child [children] named above. [ALT] 11. The name, birthdate, sex, and residence address of all other children living at or having custodial visitation at the home where the injury occurred to the child [children] named above are _______________________________________________. [ALT] 11. At this time, the [name] [birthdate] [sex] [residence address] of other children living at or having custodial visitation at the home where the injury occurred to the child [children] named above cannot be determined.

As to the child [children] listed in paragraph 11: a. The name and residence address of the child’s [children’s] mother are _______________________________. [ALT] a. At this time, the [name] [residence address] of the child’s [children’s] mother cannot be determined. b. The name and residence address of the child’s [children’s] father are _________________________________. [ALT] b. At this time, the [name] [residence address] of the child’s [children’s] father cannot be determined.

12.

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c. There is no other person with sole or joint legal custody of the child [children]. [ALT] c. At this time, it cannot be determined if there is any other person with sole or joint legal custody of the child [children]. [ALT] c. The name and residence address of each other person with sole or joint legal custody of the child [children] are __________________________________. d. There is no other guardian or custodian of the child. [ALT] d. The name and residence address of the child’s [children’s] guardian or other custodian are _____________________________________________. [OPT] e. At this time, no parent, guardian or other custodian or the child [children] can be found within the state. The name and residence address of an adult relative of the child [children], who is residing within the state, are _________________ ______________________________________________________________________. [ALT] e. At this time, no parent, guardian or other custodian, or any adult relative can be found within the state.

13. There is no legal document controlling the status of any child listed above (including but not limited to a divorce decree, stipulation or parenting agreement). [ALT] 13. There is a legal document controlling the custodial status of a child listed above (including but not limited to a divorce decree, stipulation or parenting agreement), further described as follows: ____________________________________. [At this time, it cannot be determined whether there are other legal documents controlling the custodial status of any child listed above.] [ALT] 13. At this time, it cannot be determined whether there are any legal documents controlling the custodial status of any child listed above (including but not limited to a divorce decree, stipulation or parenting agreement).

14. This petition asks that the court appoint a guardian ad litem for the child and an attorney for the guardian ad litem, or an attorney for the child, pursuant to Idaho Code §16-1614. [OPT] 15. The alleged offender has been removed from the children’s home pursuant to Idaho Code §16-1608(1)(b). This petition asks that the court enter a protection order pursuant to Idaho Code § 16-1608(3), prohibiting the alleged offender from returning to the home until otherwise ordered by the court. This petition asks the court to schedule a shelter care hearing, to determine whether to issue a protection order. [ALT] 15. Reasonable efforts to prevent or eliminate the need for placement of the child outside the home could be affected by a protective order safeguarding the child’s welfare. This petition asks that the court enter a protection order pursuant to Idaho Code § 16-1615(5)(f), that [prohibits] [requires] the following: __________________________ _______________________________________________________________________. This petition asks the court to schedule a shelter care hearing, to determine whether to issue a protection order.5

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DATED this _____ day of _______________, 20___. ____________________________ Name Title (PA, DPA, or DAG)

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STATE OF IDAHO County of _____________

) ) ss. )

I, _______________, being duly sworn upon oath, state that I am _________________________, that I have read the statements in this petition, and the statements are true or are based on information and belief as stated in this petition.

_____________________________ [Name]

Subscribed and sworn before me this _____ day of _______________, 20___.

_______________________________ Magistrate Judge [ALT] _______________________________ (seal)

Notary Public for Idaho My commission expires:

Last updated November 13, 2009. Click http://www2.state.id.us/judicial/material.htm for updates.
1

Idaho Code §16-1610 directly governs the petition in a child protection case. The petition is discussed in detail in Chapter III of the Idaho Child Protection Manual.
2

This form allows the motion for endorsement on summons and the motion for protection order to be included in the petition. This avoids the preparation and filing of multiple documents that repeat the same information. In some counties, local practice is to use a separate motion for an endorsement on summons. Also, in some counties, local practice is for the court to issue a separate Order For Endorsement on Summons in addition to the summons containing the endorsement; in such counties the form Order for Endorsement on Summons should be included with the petition. The form for the summons is set forth in IJR 33; the additional language for an endorsement on the summons is set forth in IJR 34.
3

Regarding the “contrary to the welfare/best interest” finding: Federal law requires that the court make a written, case-specific finding that removal of the child is in the child’s best interest and that remaining in the home is contrary to the welfare and of the child, and requires that this finding be made in the first order sanctioning removal of the child from the home. 45 C.F.R. § 1356.21 (c) & (d). Failure to make the finding in the required manner at the required time will result in loss of the child’s eligibility for federal IV-E funding, and the error cannot be corrected at a later date to restore the child’s eligibility for funding. If an endorsement on summons is sought, then the first order sanctioning removal is the endorsement on summons; in other cases, the first order is likely to be the shelter care order.

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The form language for an endorsement on summons in IJR 34 includes language for such a finding; Idaho Code §16-1615(5)(d) & (e) requires a similar finding for a shelter care order; and Idaho Code 16-1619(6) requires a similar finding at the adjudicatory hearing. The court’s order may state the specific factual basis for the finding, or it may incorporate by reference another document that sets forth the specific factual basis for the finding. (If the court makes the case-specific finding orally on the record, but fails to include it in the written order, then a transcript of the proceedings will meet the requirement for a written finding, but this is a costly substitute for a written finding.) The recommended best practice is to include the case-specific information to support the finding either in the petition, or in an affidavit attached to and incorporated by reference in the petition, which can then be incorporated by reference in the court’s order. The contrary to the welfare/best interest requirement is discussed in detail in the Idaho Child Protection Manual, § III.B.2 and in §§ IV.E..1.b and IV.E.2.b.
4

Regarding the “reasonable efforts to prevent removal” finding: If a child is removed from the home, federal law requires that the court make a written, casespecific finding that the state made reasonable efforts to prevent the need for removal of the child from the home, and requires that this finding be made within 60 days after removal. 45 C.F.R. § 1356 (c) & (d). Failure to make the required finding within the required time will result in loss of the child’s eligibility for federal IV-E funding, and the error cannot be corrected at a later date to restore the child’s eligibility for funding. Idaho law requires that this finding be made at the shelter care hearing and the adjudicatory hearing. Idaho Code §§ 16-1615(5)(b) and 16-1619 (6)(a) & (b). The court’s order may state the specific factual basis for the finding, or it may incorporate by reference another document that sets forth the specific factual basis for the finding. (If the court makes the case-specific finding orally on the record, but fails to include it in the written order, then a transcript of the proceedings will meet the requirement for a written finding, but this is a costly substitute for a written finding.) The recommended best practice is to include the case-specific information to support the finding either in the petition, or in an affidavit attached to and incorporated by reference in the petition, which can then be incorporated by reference in the court’s order. The reasonable efforts requirement is discussed in detail in the Idaho Child Protection Manual § III.B.2 and in §§ IV.E..1.b and IV.E.2.b. Regarding alternate sub-paragraph (b): The only exception to the requirement for a “reasonable efforts to prevent removal” finding is where the court finds that the parent(s) subjected the child to aggravated circumstances, but this finding is not made until more the adjudicatory hearing, which in some cases may occur more than 60 days after removal. There is no exception for an emergency removal of the child pursuant to Idaho Code § 16-1608, where reasonable efforts to prevent removal were not possible due to imminent danger to the child; in those cases, the petition should include the language in the alternate sub-paragraph (b). This language, despite its awkwardness, has been painstakingly negotiated between the state and federal authorities and complies with both state and federal requirements – it should not be altered or amended.
5

Alternate paragraph 15 might be used where the prosecution is seeking prohibitions or requirements on parties other than the alleged offender, or seeks to place prohibitions or requirements on the alleged offender other than or in addition to removal from the home.]

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