Temporary Custody Papers

CWL-202 DEPENDENCY & NEGLECT Temporary Custody Hearing Summary A child may be taken into temporary custody without a court order, with an ex parte protective order or after a temporary custody hearing. You must determine whether county DHS made reasonable efforts to prevent the placement. A law enforcement officer may remove a child without a court order if the child is in immediate danger such as if the child is:  Abandoned  Lost  Seriously endangered  A run away  With a parent under an arrest warrant for violating a custody order A law enforcement officer upon the recommendation of DHS, a physician, a nurse, or a physician’s assistant may detain a newborn child in a hospital while an order of the court is being obtained. Court orders for custody of a newborn child are not required if:  The newborn child is affected by substance abuse or demonstrating withdraw symptoms;  The newborn child‟s only identifiable birth parent or parents have been determined by a physician, registered nurse, or qualified mental health professional to be mentally ill or gravely disabled; or  The newborn child is subject to environment exposing the newborn child to a laboratory for manufacturing illegal drugs. The peace officer must release the child to the parent or other responsible adult unless placement out of the home is necessary to the child’s best interests and EMERGENCY CUSTODY C.R.S. § 19-3401 C.R.S. § 19-3401(3)(c) C.R.S. § 19-3401(3)(c) C.R.S. § 19-3-402(2) CWL-202 welfare. The judge can condition the child‟s release or require a written promise to bring the child to court. DHS may remove a child only with a court order. The court may issue an ex parte protective custody order if continuing the child in the home or in the responsible person‟s custody presents a danger to the child‟s life or health in the foreseeable future. DHS, law enforcement, hospital administrators and physicians may also request such an order. The order may be written or verbal and it expires in three court days. DHS must be notified to begin dependency and neglect D&N proceedings. You may issue orders to protect the child without removal. An emergency protective order can restrain a person from threatening, molesting, injuring or contacting the child or interfering with the child‟s supervision. The order expires in seventy-two hours, excluding Saturdays, Sundays, and legal holidays. You may order emergency caretaker services into the home. This option avoids a foster care placement. The emergency caretaker remains until a parent, guardian or legal custodian enters the home and expresses a willingness and apparent ability to resume charge of the child. The order expires in 72 hours, excluding Saturday, Sundays, and legal holidays. (Emergency caretaker services are not available in every county).  C.R.S. § 19-3-402(1) & (4) C.R.S. § 19-3-403(2) C.R.S. § 19-3-405(2)(b) and (3)  C.R.S. § 19-3404  Immunity For Ex Parte Removal Any law enforcement officer, DHS employee or other person authorized by the court or statute to take or retain custody of a child has good faith immunity from civil or criminal liability. Immunity also extends to transporting the child and releasing the child from custody. Good faith is presumed. C.R.S. § 19-3-403(8). Malik v. Arapahoe Cty. DHS, 987 F.Supp. 868 (D. Colo. 1997), held that qualified immunity did not protect a police officer that requested an ex parte protective custody order knowing the child was not in danger. The police officer had contacted the mother about pornographic pictures of her daughter. The mother explained they had been taken six months prior by her brother who lived in another state. When the officer asked for an interview with her daughter, 2005 Temporary Custody Hearing 224 CWL-202 the mother hired an attorney to negotiate the terms of the interview. After delays by the attorney, the officer obtained an ex parte removal order without telling the court about the mother‟s attorney or that the alleged perpetrator did not live with the child. After he interviewed the girl, he immediately released her to her mother. The federal district found that these allegations, if proven in court, would establish a violation of the mother‟s First Amendment rights to familial association and privacy and her Fourth Amendment right to be free of unreasonable seizures. TEMPORARY CUSTODY HEARING  C.R.S. § 19-1-115 C.R.S. § 19-3-403(3.5) & (3.6) J. Dir. 98-02 After removal, hold a temporary custody hearing (also called a shelter or detention hearing, or preliminary protective proceeding) to determine further custody of the child or whether the emergency protection order should continue. Time frames for holding a custody hearing depend upon the child‟s placement and authority for placement:  If the child is in a juvenile detention facility, the court must hold a hearing within twenty-four hours of placement (excluding Saturdays, Sundays, and legal holidays).  If the child was picked up by law enforcement and placed in a shelter facility or temporary holding facility not operated by DHS, the court must hold a hearing within forty-eight hours of placement (excluding Saturdays, Sundays, and legal holidays).  If the court entered an emergency protective order or if the child was placed with DHS the court must hold a hearing within seventy-two hours of placement (excluding Saturdays, Sundays, and legal holidays).  Courts may not enter nunc pro tunc orders. DHS’ failure to request a timely custody hearing does not deprive the court of jurisdiction. Standard For Removal When evaluating whether you should transfer or continue temporary custody, the child‟s best interests standard prevails. Do not apply the D&N adjudication or disposition standards at the temporary custody hearing. W.H., 735 P.2d 191 (Colo. 1987). 324 P.F.M., 184 Colo. 393, 520 p.2d 742 (1974)  2005 Temporary Custody Hearing CWL-202 W.H. was a nine-year-old boy who had run away from home. When the police found him, he had extensive bruising on his arm. He said his stepfather had hit him repeatedly with a plastic bat. At the temporary custody hearing, the trial judge held that the incident did not meet the statutory D&N definitions. The Colorado Supreme Court reversed and remanded because the judge should have evaluated whether placement was in the child‟s best interests. C.R.S. § 19-3403(3.6) At the temporary custody hearing, you may consider any information having probative value regardless of its admissibility under the rules of evidence. Orders related to out of home placement are effective on the date that the order is signed by the court. A court is not to use the words “nunc pro tunc” in its written order but is to use the phrase “the effective date of this order is”. Evidence at the Temporary Custody Hearing The standard for receipt of evidence at the temporary custody hearing is much more liberal than at other hearings. C.R.S. §19-3-403(3.6) provides that the court may consider “any information having probative value.” Despite this provision, exercise care to exclude evidence that is not reliable. Examples of questionable evidence might include double or triple hearsay or statements elicited from a child through the use of leading or suggestive questions. Regardless of the standard that you set, be consistent in your evidentiary rulings so that the parties may plan for what type and quality of evidence you expect to be presented at these hearings. Lowenbach ADVISEMENT Sample English Advisement (Magistrate) MY NAME IS _________________________. A PETITION HAS BEEN FILED IN THE JUVENILE COURT, ALLEGING THAT THE CHILD OR CHILDREN NAMED IN THE PETITION ARE DEPENDENT OR NEGLECTED. YOU HAVE BEEN NAMED AS A RESPONDENT IN THIS ACTION BECAUSE YOU ARE THE NATURAL OR ADOPTIVE PARENT, GUARDIAN, LEGAL CUSTODIAN, STEPPARENT OR CARETAKER OF THE CHILD. THE PETITION IN DEPENDENCY OR NEGLECT WILL INFORM YOU OF THE 2005 Temporary Custody Hearing 424 C.R.S. § 19-1115(6.7) CWL-202 REASON WHY THE DEPARTMENT OF HUMAN SERVICES IS ALLEGING THAT THE CHILDREN ARE DEPENDENT OR NEGLECTED. I WANT TO ADVISE YOU OF YOUR RIGHTS IN THIS MATTER. IF YOU HAVE ANY QUESTIONS WITH REGARD TO THIS ADVISEMENT, PLEASE ASK THE MAGISTRATE FOR FURTHER EXPLANATION WHEN YOUR CASE IS CALLED. THIS IS A MAGISTRATE DIVISION OF THE JUVENILE COURT. FOR EVERY HEARING, EXCEPT FOR THIS ONE, YOU HAVE A RIGHT TO REQUEST THAT A JUDGE HEAR THIS MATTER. IF YOU WISH TO EXERCISE YOUR RIGHT TO HAVE THIS MATTER HEARD BY A JUDGE, YOU MUST MAKE YOUR REQUEST AT THE TIME THE MATTER IS SET FOR HEARING. IF YOU DO NOT OBJECT TO THE MAGISTRATE HEARING THE MATTER, YOU WILL BE BOUND BY THE FINDINGS AND ORDERS OF THE MAGISTRATE, SUBJECT TO A REQUEST FOR REVIEW. YOU HAVE THE RIGHT TO UNDERSTAND THE NATURE OF THE ALLEGATIONS CONTAINED IN THE PETITION. PLEASE READ CAREFULLY THE SUMMONS AND PETITION. YOU HAVE THE RIGHT TO BE REPRESENTED BY AN ATTORNEY. IF YOU ARE INDIGENT, YOU MAY BE ASSIGNED COUNSEL TO REPRESENT YOU WITHOUT COST TO YOU. IF YOU DENY THE ALLEGATIONS, A HEARING WILL BE SET WITHIN 90 DAYS OF THE FILING OF THE PETITION, OR SIXTY DAYS IF THE PETITION NAMES A CHILD UNDER THE AGE OF SIX. YOU HAVE THE RIGHT TO A TRIAL BY JURY OF SIX OR BY THE COURT. AT TRIAL, THE BURDEN OF PROOF IS ON THE DEPARTMENT OF HUMAN SERVICES TO PROVE THE ALLEGATIONS CONTAINED IN THE PETITION BY A PREPONDERANCE OF THE EVIDENCE. PREPONDERANCE MEANS MORE LIKELY THAN NOT. IF YOUR CHILD IS A NATIVE AMERICAN, THE BURDEN OF PROOF IS CLEAR AND CONVINCING EVIDENCE. CLEAR AND CONVINCING MEANS A FIRM BELIEF. IF YOU MAKE AN ADMISSION TO THE PETITION IT MUST BE VOLUNTARY AND NOT THE RESULT OF ANY UNDUE INFLUENCE, COERCION, PRESSURE OR PROMISES ON THE PART OF ANYONE. IF YOU ENTER AN ADMISSION TO THE PETITION, OR IF THE PETITION IS PROVEN AT TRIAL, THE COURT SHALL APPROVE AN APPROPRIATE TREATMENT PLAN INVOLVING EACH NAMED CHILD AND EACH NAMED RESPONDENT DESIGNED TO RENDER THE RESPONDENT FIT TO PROVIDE ADEQUATE PARENTING TO THE CHILD WITHIN A REASONABLE TIME WHICH RELATES TO THE CHILD‟S NEEDS. THE HEARING ON THE TREATMENT PLAN, CALLED A DISPOSITIONAL HEARING, MUST OCCUR WITHIN FORTY- 2005 Temporary Custody Hearing 524 CWL-202 FIVE DAYS OF THE ADMISSION OR TRIAL, OR THIRTY DAYS IF THE CHILD IS UNDER THE AGE OF SIX. THE COURT THEN HAS AUTHORITY TO ORDER ANY OF THE FOLLOWING DISPOSITIONS: CONTINUE LEGAL CUSTODY OF THE CHILD WITH THE PARENTS, WITH OR WITHOUT PROTECTIVE SUPERVISION, UNDER SUCH CONDITIONS AS THE COURT DEEMS APPROPRIATE; OR PLACE LEGAL CUSTODY OF THE CHILD WITH THE DEPARTMENT OF HUMAN SERVICES OR A CHILD PLACEMENT AGENCY; OR REQUIRE MEDICAL OR PSYCHOLOGICAL EXAMINATION OR TREATMENT OR THE COURT MAY PLACE THE CHILD IN A HOSPITAL OR MENTAL HEALTH FACILITY. THE COURT IS NOT BOUND BY ANY PROMISES OR REPRESENTATIONS OF ANYONE ABOUT THE CONTENTS OF THE APPROPRIATE TREATMENT PLAN OR DISPOSITIONAL ALTERNATIVES. THESE DECISIONS ARE ENTIRELY UP TO THE COURT. IF OUT OF HOME PLACEMENT IS ORDERED AT THE DISPOSITIONAL HEARING, THE DEPARTMENT OF HUMAN SERVICES MUST SHOW BY A PREPONDERANCE OF THE EVIDENCE THAT SEPARATION FROM THE PARENTS OR GUARDIAN IS IN THE CHILD‟S BEST INTEREST, AND YOU WOULD HAVE THE RIGHT TO HAVE THE COURT REVIEW THE CHILD‟S PLACEMENT WITHIN 90 DAYS AFTER THE ORDER IS ENTERED. IF YOUR CHILD IS A NATIVE AMERICAN, THE DEPARTMENT MUST JUSTIFY OUT OF HOME PLACEMENT WITH CLEAR AND CONVINCING EVIDENCE. YOU HAVE A RIGHT TO PARTICIPATE IN THE PREPARATION OF THE TREATMENT PLAN. IF YOU DO NOT AGREE WITH THE PROPOSED TREATMENT PLAN, YOU HAVE THE RIGHT TO REQUEST A HEARING AND THE COURT WILL DECIDE WHAT THE APPROPRIATE TREATMENT PLAN SHOULD BE. ONCE A TREATMENT PLAN IS ADOPTED BY THE COURT, THE PLAN BECOMES AN ORDER OF THE COURT. YOUR FAILURE TO COMPLY WITH THE TERMS OF THE PLAN COULD RESULT IN YOUR BEING HELD IN CONTEMPT OF COURT AND FINED, JAILED OR BOTH OR YOU COULD LOSE YOUR PARENTAL RIGHTS. IF YOU SUCCESSFULLY COMPLETE THE TREATMENT PLAN WITHIN THE TIME ALLOWED BY LAW, YOUR CHILD OR CHILDREN WILL BE RETURNED TO YOU. YOU ALSO NEED TO BE AWARE THAT TERMINATION OF THE PARENT-CHILD LEGAL RELATIONSHIP IS A POSSIBLE REMEDY IF YOU ENTER AN ADMISSION TO THE PETITION, OR IF THE PETITION IS PROVEN AT TRIAL. A MOTION TO TERMINATE REQUIRES A SEPARATE HEARING WHERE THE DEPARTMENT OF HUMAN SERVICES MUST PROVE BY CLEAR AND CONVINCING EVIDENCE 2005 Temporary Custody Hearing 624 CWL-202 THAT YOU DID NOT COMPLY WITH THE TREATMENT PLAN. IF YOUR CHILD IS A NATIVE AMERICAN, THE DEPARTMENT MUST PROVE A TERMINATION HEARING BEYOND A REASONABLE DOUBT. ANY PARTY HAS THE RIGHT TO APPEAL ANY FINAL DECISION OF THE COURT. IF YOU WANT TO APPEAL THE FINDINGS OR ORDERS OF THE MAGISTRATE, YOU MUST FILE A REQUEST FOR JUDICIAL REVIEW WITHIN FIVE DAYS AFTER YOU HAVE RECEIVED NOTICE OF THE FINDINGS OR RULINGS. IF YOU WISH TO APPEAL A MAGISTRATE‟S RULING TO THE COLORADO COURT OF APPEALS, YOU MUST FIRST HAVE FILED FOR JUDICIAL REVIEW OF THAT RULING. PARENTS OF THE CHILD ARE ADVISED THAT THE CHILD MAY BE PLACED WITH THE CHILD‟S GRANDPARENT, AUNT, UNCLE, BROTHER OR SISTER IF, IN THE COURT‟S OPINION, SUCH PLACEMENT IS APPROPRIATE AND IN THE CHILD‟S BEST INTERESTS. PARENTS OF THE CHILD ARE ORDERED TO PROVIDE TO THE DEPARTMENT OF HUMAN SERVICES, WITHIN 15 DAYS AFTER TODAY‟S HEARING, THE NAMES, ADDRESSES, AND TELEPHONE NUMBERS, IF KNOWN, OF ANY RELATIVES. THE COURT WILL PROVIDE AN AFFIDAVIT FOR THIS PURPOSE. IF YOU ARE ABLE TO DO SO, PLEASE COMPLETE THE AFFIDAVIT TODAY. IF YOU DO NOT PROVIDE THIS INFORMATION PROMPTLY, YOUR CHILD OR CHILDREN MAY NOT BE ABLE TO BE PLACED WITH A RELATIVE OR FAMILY MEMBER ON A TEMPORARY OR PERMANENT BASIS SHOULD THE NEED ARISE TO DO SO LATER IN YOUR CASE. IF YOU ARE NAMED AS A SPECIAL RESPONDENT THE COURT MAY ENTER PROTECTIVE ORDERS OR INCLUDE YOU IN A TREATMENT PLAN. A GUARDIAN AD LITEM WILL ALSO BE APPOINTED IN YOUR CASE. THIS IS AN ATTORNEY WHO REPRESENTS THE BESTS INTERESTS OF ANY CHILD NAMED IN THE PETITION. IT IS IMPORTANT THAT YOU COMMUNICATE AND COOPERATE WITH YOUR ATTORNEY, SOCIAL WORKER, OR OTHER PROFESSIONAL. THE COURT WILL NOT DELAY YOUR CASE BECAUSE YOU HAVE NOT FOLLOWED THROUGH ON YOUR OBLIGATIONS. THANK YOU FOR LISTENING. IF YOU HAVE ANY QUESTIONS, PLEASE ASK THE MAGISTRATE WHEN YOUR CASE IS CALLED. Sample Spanish Advisement (Magistrate) C.R.S. § 19-3-403(3.6) Each parent attending a temporary custody hearing must be given a form affidavit and advisement. Temporary Custody Hearing 724 2005 CWL-202 Case No. 2005 JV __________ ACKNOWLEDGEMENT OF ADVISEMENT OF RIGHTS IN DEPENDENCY AND NEGLECT CASES The undersigned hereby acknowledges that he or she has viewed the video detailing his or her rights in Dependency and Neglect cases as set forth below. YOUR RIGHTS 1. You have the right to be represented by an attorney at all stages of the proceedings. 2. If you are a parent, guardian or legal custodian and you qualify for a courtappointed attorney, an attorney will be appointed to represent you at no cost to you. If you do not qualify for a court appointed attorney, you may hire an attorney of your choice at your own expense. 3. You have the right to have your case heard before a magistrate, a judge or a jury of six people from the community. 4. The county attorney must prove the case against you by a preponderance of the evidence. This means that it is more likely than not that your child is dependent or neglected as defined under Colorado law. 5. The petition filed by the Department of Human Services contains the specific allegations against you. You will receive a copy of this petition and the allegations against you will be explained during your court hearing. 6. You have the right to deny any or all of the allegations contained in the petition that alleges why your child or children are dependent or neglected. 7. You have the right to admit any or all of the allegations contained in the petition that alleges why your child or children are dependent or neglected, but any admissions you make must be made freely and voluntarily. 8. If you proceed to trial, you have the right to cross examine the witnesses presented against you, call witnesses to testify on your behalf, including using the subpoena power of the court to compel them to come to court and testify, and you have the right to testify and present evidence on your own behalf. 9. If you go to trial and the Department of Human Services fails to prove its case against you, your children will be returned to you and the case will be over. 2005 Temporary Custody Hearing 824 CWL-202 10. If the Department of Human Services proves its case against you or you admit one or more of the allegations contained in the petition, a treatment plan will be prepared to address the problems that led to the dependency and neglect case being filed against you. You have a right to participate in the preparation of that treatment plan. If you do not agree with the proposed treatment plan, you have the right to request a hearing and the court will decide what the appropriate treatment plan should be. Once a treatment plan is adopted by the court, the plan becomes an order of the court. Your failure to comply with the terms of the plan could result in your being held in contempt of court and fined, jailed or both or you could lose your parental rights. If you successfully complete the treatment plan within the time allowed by law, your child or children will be returned to you. 11. If one or more of the allegations in the petition are admitted or proven in court, the court may do any of the following: (a) Place the child or children in the legal custody of one or both parents, of a relative or the legal guardian; (b) Place the child or children in the legal custody; (c) Place the child or children in the legal custody of the Department of Human Services or for placement in a foster care home or child care facility; or (d) Order the child or children to be examined by a physician, surgeon, psychiatrist or psychologist or receive other special care and be placed in a hospital or other suitable facility. The court is not bound by any promises or representations made by anyone as to which of these alternatives the court will select for your child or children. 12. If the magistrate, judge or jury finds that your child or children are dependent or neglected, you have the right to appeal that decision. 13. If you fail to comply with the treatment plan, or if the treatment plan does not fix the problems that brought your family to court to begin with, under Colorado law, a motion to terminate your parental rights may be filed. 14. If a motion is filed to terminate your parental rights, a separate hearing will be held before the judge or magistrate to determine if your legal relationship as the parent of your child or children should be terminated. You do not have the right to a jury trial in a termination proceeding. If your parental rights are terminated, your child or children would be available for adoption by someone else. 15. You have the right to have an attorney represent you in any termination proceeding and if you cannot afford an attorney and qualify for a courtappointed attorney, an attorney will be appointed to represent you at no charge to you. 16. You have the right to cross examine the witnesses against you, call witnesses to testify on your behalf, including using the subpoena power of the court to compel them to come to court and testify, and you have the right to testify and present evidence on you own behalf. 2005 Temporary Custody Hearing 924 CWL-202 17. In order to terminate your parental rights, the case against you must be proven by clear and convincing evidence. Clear and convincing evidence means that the judge or magistrate must have a firm belief or conviction that the allegations contained in the motion to terminate your parental rights are true. The evidence required is greater than a preponderance of the evidence, but less than beyond a reasonable doubt which is required in criminal cases. 18. You also have the right to appeal the decision of the judge or magistrate if your parental rights are terminated. 19. You have the right to have an attorney represent you on any appeal. If you can not afford an attorney and qualify for a court-appointed attorney, an attorney will be appointed to represent you on appeal at no cost to you. 20. If you, your child or children are a registered member of a Native American Indian tribe or are eligible to become a member of a Native American Indian tribe, you may be entitled to additional rights and protections under the Indian Child Welfare Act. You must advise the court of this in order to receive these additional rights and protections. 21. You will be given a Relative Resource form. It is important that you provide the names, addresses and telephone numbers of any relatives or family members who can provide a temporary home for your child or children. The form must be completed within fifteen days of today‟s date and returned to your caseworker. If you do not provide this information promptly, your child or children may not be able to be placed with a relative or family member on a temporary or permanent basis should the need arise to do so later in your case. Dated this ________ day of _________________, 200____. ________________________________________ Print Your Name ________________________________________ Signature PHYSICAL CUSTODY OPTIONS Depending upon the circumstances of the case, the child may be placed with:  DHS if such placement is appropriate and in the child‟s best interests; 2005 Temporary Custody Hearing 1024 CWL-202 C.R.S. § 19-3403(3.6)  Any relative of the child who is appropriate, capable, willing and available for care if such placement is in the best interests of the child and if the court finds that there is no suitable birth or adoptive parent available (after due diligence was exercised in attempting to locate such parent). C.R.S. § 19-3-401 With certain exceptions, a newborn child who is not in a hospital setting shall not be taken into temporary custody for a period of longer than twenty-four (24) hours without a court order that includes findings that the child is seriously endangered and an emergency situation exists and that the newborn child is seriously endangered. There is a presumption that siblings be placed together if DHS locates an appropriate, capable, willing and available joint placement. This presumption may be rebutted by a preponderance of the evidence that joint placement is not in the child‟s best interests. Placement with a grandparent is preferred over foster care. The grandparent must be appropriate, capable, willing and available to care for the child. The placement must be in the child‟s best interests. You must consider any credible evidence of past abuse or neglect by the grandparent. Credible evidence includes medical, school, police, central registry, and court records. Concurrent planning: If the child is placed out of the home, it is important to begin developing ideas for concurrent permanency plans for that child right away. This will help to avoid delays later in the case should reunification or other permanent plans fail. C.R.S. § 19-3402(2)(b) C.R.S. § 19-3402(2) C.R.S. § 19-3403(3.6) C.R.S. § 19-1117.7 LEGAL CUSTODY OPTIONS C.R.S. § 19-1103(73) Legal custody means the right to the care, custody, and control of a child and the duty to provide food, clothing, shelter, ordinary medical care, education, discipline for a child, to determine where the child will live (unless the child is placed with DHS), and, in an emergency, to authorize surgery or other extraordinary care. This custody may be taken from a parent only by court order. A child is determined to be a resident of the school district where the person having legal custody resides. Temporary Custody Hearing 1124 C.R.S. § 22-1-102 2005 CWL-202 No individual or agency having legal custody of a child may remove a child from the state for more than thirty days without court approval. When granting this approval, the court should follow the requirements of ICPC. Options for legal custody include an individual, agency or institution. Preference, however, is for the child‟s grandparent who is determined to be appropriate, capable, willing, and available for care if the court finds that, after due diligence, no suitable natural or adoptive parent. Legal guardianship means the duty and authority to make major life decisions affecting a child, including the authority to: consent to the child‟s marriage; enlistment in the armed forces; medical or surgical treatment; represent a child in legal actions and make decisions of substantial legal significance concerning the child; consent to the adoption of a child when the parent‟s rights were previously terminated; along with having the rights and responsibilities of legal custody (when this has not been ordered in another person, agency, or institution). C.R.S. § 19-1115(3)(b) C.R.S. § 19-1115 C.R.S. § 19-1103(60) PLACEMENT OPTIONS AND PREFERENCES C.R.S. § 19-1102(1)(a) 12 C.C.R. 2509-4, § 7.301.1  It is preferable that a child be placed in his or her own home. Child protection workers use the Colorado Assessment Continuum to determine whether a child is in danger. A child needing placement out of the home should be placed in the custody of an appropriate relative, if at all possible. Custody includes the right to care, custody, and control of a child and the duty to provide food, clothing, shelter, ordinary medical care, education and discipline and, in an emergency situation, to authorize surgery or other extraordinary care. Custody with the child’s grandparent is preferred. The court must find that no suitable natural or adoptive parent is available and must consider whether there is credible evidence of past abuse by the child‟s grandparent(s).  C.R.S. § 19-1115(1)(a) C.R.S. § 19-1103(73)  C.R.S. § 19-1115(1)(a) C.R.S. § 19-1-117.7 C.R.S. § 19-1- 2005  A child may be placed in temporary shelter care, 1 in foster care, or in a treatment facility. The 1 agency having custody of the child must give 5 ( 2 Temporary Custody Hearing 1224 ) ( b CWL-202 information to the court concerning the child at any time it is requested. C.R.S. § 19-11 1 5 ( 3 ) ( b )  A child may not be removed from the state for more than thirty days without court approval. If a child must be placed out the state for more than thirty days, the individual or agency having custody must comply with the “Interstate Compact on Placement of Children” (ICPC). A child’s placement out of the home shall be for a determinate period. The court must review the placement no later than three months after it was ordered. When placing children out of the home, the court should consider the setting. Preferences include the ability of the placement facility to meet the special educational needs of the child, the proximity of the proposed out-of-home placement facility to the child‟s parents‟ home, and whether the proposed placement facility is in the same school district as the child‟s parents‟ residence. Findings and orders entered by the court when placing children will dictate future funding sources for the child. Title IV-E of the Social Security Act provides federal matching funds to help pay for the cost of foster care for eligible children if the court finds reasonable efforts have been made to prevent or eliminate the need for removal or if an emergency situation exists such that it is reasonable to not make reasonable efforts to prevent removal. The court must also order the parents to pay a fee, based upon ability to pay, to cover costs of the child‟s residential care if public money is used to pay for the care.  C.R.S. § 19-1115(4)(a) C.R.S. § 24-60-1801  C.R.S. § 19-1115.5(1)(b)  C.R.S. § 19-1115(4)(a) C.R.S. § 19-1-115(6) 12 CCR 2509-1, § 7.001.41 REQUIRED FINDINGS There are state and federally required findings when you remove a child: You must find that:  Continuation of the child in the home would be contrary to the child‟s best interests;  There has been compliance with reasonable efforts requirements regarding removal of the child from the home, as follows: 2005 Temporary Custody Hearing 1324 CWL-202 U.S.C.A. U.S.C.A. U.S.C.A. U.S.C.A. § § § § 671(a)(15) 672(a)(1) 678 671(a)(15) C.R.S. § 19-1-115(6) 2 2 2 2 C.R.S. § 19-1-115(6) and (7)  o Reasonable efforts have been made to prevent or eliminate the need for removal of the child from the home; or o An emergency situation exists which requires the immediate temporary removal of the child from the home and it is reasonable that preventative efforts not be provided due to the emergency situation; or o Reasonable efforts to prevent the child‟s removal from the home are not required because:  The parent has subjected the child to “aggravated circumstances” as described in sections 19-3-604(1) and (2), such as abandoned, tortured, chronically abused or sexually abused the child; or  The parental rights of the parent with respect to a sibling of the child have been involuntarily terminated; or  The parent has been convicted of any of the following crimes:  Murder of another child of the parent;  Voluntary manslaughter of another child of the parent;  Aided, abetted, or attempted, conspired, or solicited to commit the crimes of murder or voluntary manslaughter to the child or to another child of the parent;  Felony assault that resulted in serious bodily injury to the child or to another child of the parent. o Reasonable efforts have been made or will be made to reunite the child and family, or o Efforts to reunite the child and family have failed; Procedural safeguards with respect to parental rights have been applied in connection with the removal of the child from the home, a change in the child‟s placement out of the home, and any determination affecting parental visitation. Suter v. Artist M., 503 U.S. 347 (1992) These requirements do not affect your authority to protect or transfer custody of a child. They do affect DHS‟ ability to get federal funding for the placement. At the custody hearing the court must order the parents to provide, within fifteen days, the names, addresses, and telephone numbers, if known, of any relatives. Temporary Custody Hearing 1424 C.R.S. § 19-3403(3.6) 2005 CWL-202 These relatives may later serve as shelter care or permanent care for the child. The form and affidavit related to child placement must be completed within 15 days after the hearing or prior to the next hearing date, whichever occurs first. The court must advise that failure to identify every relative who may be a possible placement many result in the child‟s placement outside of any relative home on a permanent basis. C.R.S. § 19-1115(6)(b C.R.S. § 19-3401(1.5) C.R.S. § 19-3403(3.6) Preventive services are not required in an emergency. If an emergency exists that requires immediate temporary removal of the child from the home, you may find that it is reasonable not to make efforts to prevent removal. Questions on Efforts to Prevent Removal Were services offered to the family before the child‟s removal? If not, was it reasonable not to offer services? If services were offered: Were the services relevant to the family‟s problems? Were they adequate to address these problems? Were the services made accessible to the family? Were the efforts diligently made? Were multiple services well coordinated? Were there other cost-effective services that should have been offered? Are reasonable efforts required for delinquents? Colorado law requires you to make a reasonable efforts determination whenever you detain a delinquent. You must also look at reasonable efforts when reviewing a delinquent in a community placement. A community placement includes a foster care home, group home, residential childcare facility or residential treatment facility. Reasonable Efforts The federal reasonable efforts requirement gives state courts the unique opportunity to impact DHS funding when it fails to use services to avert placements or reunite families. This remedy is especially important since the Supreme Court has held there is no private right of action for the state‟s failure to make reasonable efforts. Suter v. Artist M., 503 U.S. 347 (1992). Under the Adoption and Safe Families Act, specific exceptions to the requirement were adopted to clarify that “the child‟s safety is the paramount concern.” 42 U.S.C.A. § 671(a)(15)(A). If the child is removed under emergency 2005 Temporary Custody Hearing 1524   C.R.S. § 19-2508(3)(a)(VII) C.R.S. § 19-2-906.5 C.R.S. § 19-1103(24.5) CWL-202 circumstances so that preventive services could not safely be offered, you may find the lack of efforts is reasonable. If reunification efforts would be detrimental to the child‟s best interests, they may be waived entirely. OTHER TEMPORARY ORDERS C.R.S. § 19-3403(3.6) and (6) You may enter other temporary orders at the temporary custody hearing, to include:  Order DHS to make reasonable and timely efforts to contact identified relatives of the child, within ninety days, for consideration as a possible placement.  Authorize or consent to medical, surgical, or dental treatment or care for a child placed in shelter care (if parent‟s consent cannot be obtained).  The failure of any party to comply with temporary orders of protection or any other valid temporary order is punishable by contempt of court.  Authorize a family group conference.  Cooperate with a GAL or CASA investigation. CUSTODY HEARINGS SPECIAL CIRCUMSTANCES Religious Objections to Medical Treatment C.R.S. § 19-3103(1) Parents may not limit a child’s access to medical care, on religious grounds, in a life-threatening situation, or when the condition of the child will result in serious disability. The court may order a medical evaluation of the child to make a determination as to whether the child is in a lifethreatening situation or the condition of the child will result in a serious disability. The court may order that medical treatment be provided to a child if it finds, on the basis of any relevant evidence, including a medical evaluation, that:  The child is in a life-threatening situation, or  The child‟s condition will result in serious disability. A parent may not interfere with the provision of courtordered medical treatment of a child. Developmentally Disabled or Mentally Ill Child C.R.S. 103(1) C.R.S. 104(3) § § 19-319-1- C.R.S. § 19-3103(1) C.R.S. § 19-3103(1) 2005 Temporary Custody Hearing 1624 CWL-202 C.R.S. § 19-3403(4)  A developmentally disabled or mentally ill child must be evaluated. Refer any child who appears to be developmentally disabled to the nearest communitycentered board for an eligibility determination. Order mental health prescreening to be done within 24 hours for children who appear to be mentally ill. After prescreening, determine if commitment procedures are necessary. Release of Child C.R.S. § 19-3-403(5) You may release a child at any time. You can release a child with or without a hearing and with or without ordering restrictions on the person responsible for the child. Out of State Runaways and American Indian Children Special requirements apply to out-of-state runaways and American Indian children. Under the Interstate Compact on Juveniles, out-of-state runaways may be held in shelter care for up to seven days to arrange transfer to the child‟s home state; see CLW 102 For Indian children, you must expeditiously transfer the case to tribal court or comply with Indian Child Welfare Act requirements; see CWL 102. Reviews C.R.S. § 19-3403(3.7) 25 U.S.C.A. § 1922 C.R.S. § 19-1115(4)(a)  months. Review the temporary custody order within three Subsequent reviews must be held every six months. You may order these reviews be administrative if the parties do not object. Temporary Orders When you enter temporary orders of protection, it is important that the parties clearly understand what you have ordered. Ideally, all parties should receive a copy of any temporary protective order before they leave the courtroom. In some jurisdictions, judges, magistrates or clerks prepare these orders on laptop computers. In other courts, a handwritten form order is filled out and signed by the judge or magistrate and served on the parties. Even if your court does not prepare the order for distribution to the parties at the hearing, require the county attorney immediately prepare the order in order to avoid delay and promote a clear understanding of your order. 2005 Temporary Custody Hearing 1724 CWL-202 Lowenbach Costs of Placement C.R.S. § 115(4)(d) C.R.S. § 26-5-102 19-1- Parents are obligated to contribute toward the costs of their child’s residential placement based upon their ability to pay. ORDERS FOR EVALUATION & TREATMENT C.R.S. § 19-1104(3)(a) C.R.C.P. 107 You may issue temporary orders if such orders are in the best interests of any child subject to a D&N petition. The orders may be made before adjudication. The child‟s parent, guardian or legal custodian must get notice. In addition to legal custody, these orders may provide for:  Evaluation,  Treatment,  Support, or  Protection. You may issue ex parte emergency orders if reasonably necessary. You must find an emergency exists requiring medical evaluation or medical or surgical treatment. Reasonable efforts must be made to notify the child‟s parents, guardian or legal custodian for their consent before issuing the order. The emergency circumstances must be included in the order. After business hours, the order may be verbal and reduced to writing the next court day. An ex parte order expires 24 hours after it is issued. The child‟s parents, guardian or legal custodian may move to set aside the order anytime before it expires. You may authorize non-emergency treatment for children in shelter care. This includes medical, surgical and dental treatment. Reasonable efforts must be made first to get the consent of the parent, guardian or legal custodian. Emergency treatment may be authorized if they are not immediately available. “Shelter care” is defined as a child‟s temporary care in a physically unrestricted facility pending court disposition or execution of a placement order. You may order an independent mental examination of the child. If the petition alleges only emotional abuse, you Temporary Custody Hearing 1824 C.R.S. § 19-1104(3)(b) C.R.J.P. 2.3   C.R.S. § 19-3403(6) C.R.S. § 19-1103(98) C.R.S. § 19-3312 2005 CWL-202 must order it if any party requests it. The evaluation costs are split between the requesting party and the county unless the court finds this would be a hardship to the party. ORDERS FOR PROTECTION & SUPPORT C.R.S. § 19-1-114(1), (3)(b) and (4) You may issue a temporary order to protect the child. The child must be the subject of a D&N petition filed or about to be filed. The order may prescribe reasonable conditions of behavior for the respondent or any special respondents. Anyone who resides with the child may be included and required to be present at D&N hearings. The person subject to the order must be afforded notice and an opportunity for a hearing. Persons Subject to Orders of Protection Parent Legal Custodian Stepparent Guardian Custodian Spousal Equivalent Person to whom parental responsibilities have been allocated Any party to the D&N proceeding Anyone who resides with the child C.R.S. § 19-1-114(2) & (3) The order of protection may require the person to:  Stay away from the child or the child‟s residence.  Abstain from offensive conduct against the child or the child‟s parents, guardian, legal custodian, person to whom parental responsibilities have been allocated or anyone who has legal custody of the child.  Give proper care and attention to the home.  Refrain from acts of omission and commission that tend to make the home an improper place for a child.  Cooperate in good faith with any agency with legal custody, providing protective supervision, or offering court-ordered services to the child.  Pay any court-ordered child support.  Pay damages recoverable under the victim compensation law. The order may also require a parent or guardian to actively participate in the rehabilitation process. It may permit a parent to visit the child at stated periods. If the child is absent from court ordered placement, the court may issue an emergency protection order upon a finding that an imminent danger exists. C.R.S. § 19-1113(5)(a) Parents, guardians or other parties who fail to comply are subject to contempt. C.R.S. § 19-1This includes special respondents. They may be held in contempt if they violate any 114(3)(a (5) provision107) &the order of protection or other valid court order without good cause. of C.R.C.P. 2005 Temporary Custody Hearing 1924 CWL-202 TEMPORARY PROTECTION ORDERS The court may also issue temporary protection orders. C.R.S. § 13-14-103 The protection order expires at the close of business the day following its issuance, but may be extended provided the person subject to the order is given an opportunity to respond within two days. The order would be to:  C.R.S. §19-1113(3)    Restrain a person from threatening, molesting, or injuring the child; Restrain a person from interfering with the supervision of a child; Restrain a person from having contact with the child’s court-ordered residence; Restrain a person from harboring a child who is absent without permission from a court-ordered placement. Prevent unlawful sexual offenses. There must be reasonable cause to believe that a child is in danger of being a victim of an unlawful sexual offense in the reasonably foreseeable future. Restrain a party from threatening, injuring, or contacting any other party. Prevent domestic abuse. molesting, C.R.S. § 13-14-103(1)(a)  C.R.S. § 13-14-103(1)  C.R.S. § 13-14-103(1) C.R.S. § 13-14-103(1)(d)  A judge must be available at all times to issue emergency protection orders when the courts are closed. The judge may issue a written or verbal ex parte order. A verbal emergency protection order may be issued only if the judge finds that an imminent danger in close proximity exists to the life or health of the minor child in the reasonably foreseeable future. The order must be reduced to writing and served on the respondent with a copy given to the protected person. The order expires not later than the close of judicial business on the next day of judicial business following the day of issue unless continued by the court. The order must be entered into the central registry of protection orders. The court must summon a person receiving three emergency protection orders within a one-year period. Full faith and credit. A protection order from another state, Indian tribe, or U.S. Territory or commonwealth must be afforded the same credit as a protection order C.R.S. § 13-14-103(2)(a) C.R.S. § 19-1113(5)(a) C.R.S. § 13-14-103(10) C.R.S. § 13-14-104(1) and (2) 2005 Temporary Custody Hearing 2024 CWL-202 entered in this state provided the person subject to the order:  Had notice and was given opportunity to be heard, and  The issuing court had personal and subject matter jurisdiction, and  Separate grounds exist for the issuance of any mutual protection order. A peace officer may request the restraining order. County DHS or a responsible person may request an order to prevent an unlawful sexual offense. Anyone who supervises a child placed out of home may request an order to protect an absent child. A victim may request a domestic abuse order. When an order is requested, you must ask parties and their attorneys to disclose any prior restraining orders. The person being restrained must be served with the order. If the person has not been personally served but has actual notice of the existence of the order from anyone, that person may still be penalized for violating it. Venue for filing a request for a protection order is in the county where the acts constituting unlawful sexual C assault or domestic abuse occurred. The person being restrained may request the order be dissolved or modified. The petitioner must get two days‟ notice (or less if the court prescribes). The hearing must be held at the earliest opportunity and has precedence over all other matters of a different character. Resolve this motion as expeditiously as the ends of justice require. A peace officer must use every reasonable means to enforce the restraining order. The police may arrest a restrained person who has notice if there is probable cause to believe the person violated the order. If the person has not been served, the officer must serve the order. If the order is verbal, the officer must state the substance of it. Police may also protect the alleged victims, including transporting them to a shelter. Domestic Violence The effects of domestic violence and other forms of trauma on children are frequently understated. Neurobiologist Dr. Bruce Perry and others at the CIVITAS Child Trauma Program at Baylor College of Medicine observe: “We often hear „Children are resilient,‟ or „They‟ll get over it, they Temporary Custody Hearing 2124 C.R.S. § 19-1-113(2) C.R.S. § 14-4-102(15 C.R.S. § 13-14-103(4) C.R.S. § 13-14-103(5) C.R.S. § 13-14-103(1)(f) C.R.S. § 19-1-113(4)  C.R.S. § 19-1113(5)(b) C.R.S. § 18-6-803.5 2005 CWL-202 didn‟t even know what was happening.‟ It is not uncommon for adults to relate the traumatic events to clinicians in the presence of the child as if they were invisible. Often, recounting the event, the adults will describe how the traumatic event was terrifying for them but, as they describe the child‟s reactions, they frequently misunderstand the child‟s unattached, non-reactive behaviors as „not being affected‟ rather than the „surrender‟ response. This pervasive, destructive view of caregiving adults in a young child‟s life exacerbates the potential negative impact of trauma. Of course, children „get over it‟—they have no choice. Children are not resilient, children are malleable. In the process of getting over it, elements of their true emotional, behavioral, cognitive and social potential are diminished—some percentage of capacity is lost, a piece of the child is lost forever . . . Persistence of the destructive myth that ‘children are resilient’ will prevent millions of children, and our society, from meeting their true potential [Emphasis added].” Bruce D. Perry, et. al., Childhood Trauma, the Neurobiology of Adaptation and Usedependent Development of the Brain: How States Become Traits (1995). Lowenbach Related Topics CWL-103 Persons Before the Court CWL-102 Crimes Against Children CWL-104 Notice & Service CWL-201 Emotional Abuse CWL-201 Spiritual Healing Exception SPECIAL PRACTICE TIPS County Attorneys Guardians ad Litem Respondent’s Counsel The court can order DHS to provide services or explore placements your client prefers. Join members of the child‟s Request any special services household as special the child needs as soon as respondents to be included possible. Visit the child! in protective orders. CASA Court Facilitators Social Services Staff Review all temporary orders Consider sending foster Get evaluations ordered by and evaluate compliance in parents a questionnaire to the court early on to improve your next court report. get their input after a child the case planning process. has been in care for a month or longer. 2005 Temporary Custody Hearing 2224 CWL-202 2005 Temporary Custody Hearing 2324