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Decree and Order Under Child Protective Act

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					Decree and Order Under Child Protective Act IN THE DISTRICT COURT OF THE ^^^^^ JUDICIAL DISTRICT OF THE STATE OF IDAHO, IN AND FOR THE COUNTY OF ^^^^^

IN THE MATTER OF:

) ) ) ) ) ) [A Child][Children] Under Eighteen ) Years of Age.___________________________ )

Case No. ^^^^^ [AMENDED] CHILD PROTECTIVE ACT DECREE: [ ] Granting Legal Custody to IDHW [ ] Placing Child Under Protective Supervision of IDHW AND ORDER

This case came before the court on _____________________________, for an adjudicatory hearing1 [re-disposition hearing]2 pursuant to the Child Protective Act, Idaho Code Title 16, chapter 16. The court makes the following findings of fact, conclusions of law, and order, based on the record at the hearing. 1.3 a. The following parties were present for the hearing, represented by

the following counsel: __________________________________________________ _____________________________________________________________________. [OPT] b. The following parties were not present for the hearing: _________

_____________________________________________________________________. [OPT] c. The file shows that notice was given to ______________________

[the absent party] in the following manner: ___________________________________. [OPT] d. The following parents and/or legal guardian of the child has [have]

not appeared, the court file does not show that service of process has been completed, and further steps to identify, locate, and serve these persons are [this person is] necessary: _______________________________________________________________________.

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[OPT] 2.4

This order is entered consistent with the stipulation of the parties. The

court finds that all parties entered into the agreement knowingly and voluntarily, that the agreement is in the best interests of the child, and that the stipulation has a reasonable basis in fact.

3.

A petition has been filed in this case pursuant to the Child Protective Act.

4.

The court has jurisdiction over this case in that the child [each child] lives

or was found in the state of Idaho.

5.5

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] 5. a. The child is an Indian child [children are Indian children] within

the meaning of the Indian Child Welfare Act, 25 U.S.C. §§ 1901 to 1963. The child is a member [children are members] of, or is [are] eligible for membership in, the _________ Tribe. b. The court file contains proof that notice has been given to the

Indian custodian, Indian Tribe, or Secretary of the Interior, as required by the Act. [ALT] b. The court file does not contain proof that notice has been given in

accordance with the Indian Child Welfare Act. Further steps are necessary to serve process in accordance with the act and to document completion of service in the court’s file.

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[ALT] 5.

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. Further steps are necessary to determine whether the child is an Indian child [children are Indian children].

6.

The child comes [children come] within the jurisdiction of the court under

the Child Protective Act, due to: a. [ALT] [ALT] [ALT] [ALT] [ALT] b. c. d. e. f. abandonment abuse neglect homelessness lack of a stable home environment the court’s assertion of jurisdiction over another child,

_________________[name[s], listed in this petition, and the child is [children are] living or has [have] custodial visitation in the same household and has [have] been exposed to or is [are]at risk of being a victim [victims] of abuse, neglect or abandonment.

[OPT] 7.

a.

The petition alleges that the parent [parents] subjected the child

[children] to aggravated circumstances pursuant to Idaho Code § 16-1619(6)(d). The court finds and concludes that the parent [parents] subjected the child to aggravated circumstances.

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[ALT] 7.

a.

The petition alleges that the parent [parents] subjected the child

[children] to aggravated circumstances pursuant to Idaho Code § 16-1619(6)(d). The petitioner has not sustained its burden of proof on this allegation. b. Specifically, the court finds and concludes as follows:__________

_______________________________________________________________________.

8.6

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. a. The court makes this finding based on the information set forth in

_________________, prepared by ____________________, and dated ____________, which is incorporated by reference in this order. [ALT] a. Specifically, the court finds and concludes as follows:

______________________________________________________________________. [OPT] b. It is fair and equitable that [the father] [the mother] [the parents]

pay child support in the amount of __________ each month. [ALT] 8. The safety and welfare of the child [children] can be adequately

safeguarded by placing the child [children] under the supervision of the Idaho Department of Health and Welfare in the child’s [children’s] own home. [To ensure the safety and welfare of the child [children], the placement of the child [children] at home should be subject to the following conditions:_________________________________ _____________________________________________________________________.]

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9.7

a.

Reasonable efforts were made prior to placement of the child

[children] in shelter/foster care to prevent the need for placement of the child [children] in shelter/foster care. b. The court makes this finding based on the information set forth in

____________________ , prepared by ______________, and dated ______________, which is incorporated by reference in this order. [ALT] b. Specifically, the court finds and concludes as follows:

_______________________________________________________________________. [ALT] 9. a. The Department made reasonable efforts to prevent removal but

was not able to safely provide preventive services. b. The court makes this finding based on the information set forth in

____________________ , prepared by ______________, and dated ______________, which is incorporated by reference in this order. [ALT] b. Specifically, the court finds and concludes as follows:

_______________________________________________________________________. [ALT] 9. The Idaho Department of Health and Welfare was not required to make

reasonable efforts to prevent the placement of the child [children] in foster care, because the parent [parents] subjected the child [children] to aggravated circumstances.

[OPT] 10.

___________ presents a continuing danger to the child, and it is in the best

interest of the child that a protection order be entered. To adequately safeguard the

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child’s welfare, the protective order should [prohibit] [require] the following: ______ _____________________________________________________________________.

THEREFORE, IT IS HEREBY DECREED AS FOLLOWS: 1. Protective Act. The child comes [children come] within the jurisdiction of the Child

2.

Legal custody of the child [children] is vested in the Idaho Department of

Health and Welfare, for an indeterminate period not to exceed the child’s [each child’s] eighteenth birthday. [ALT] 2. The child is [children are] placed under the protective supervision of the

Idaho Department of Health and Welfare in the child’s [children’s] own home, for an indeterminate period not to exceed the child’s [each child’s] eighteenth birthday. [To ensure the safety and welfare of the child/children, the child/children are placed at home subject to the following conditions:___________________________________________ ______________________________________________________________________.]

[OPT] 3.

The [father] [mother] [parents] will pay child support in the amount of

_____ per month. Payments will be due on the _____ of the month, with the first payment due on _______________________, _______. The child support payments will continue until the child reaches the age of eighteen (18) years or until otherwise ordered by the court. All payments will be made in cashier’s check or money order and identified by the number of this case and the name[s] of the [father] [mother] [parents]. All

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payments will be made payable to the Idaho Department of Health and Welfare, and mailed to the Idaho Child Support Receipting, PO Box 7008, Boise, ID 83707-0108. This support order is enforceable by income withholding under Chapter 12, Title 32, Idaho Code. Whenever there is an arrearage equaling at least the support payment for one (1) month, a mandatory income withholding order may be issued by the court to the [father’s] [mother’s] [parents] employer or other person who pays the [father] [ mother] [ parents] income, without prior notice to the [father] [mother] [parents].

[OPT] 4.

The [^^^^^ County Deputy Prosecutor][Deputy Attorney General] and/or

the Idaho Department of Health and Welfare will take all reasonable steps to identify, locate, and serve process up on the following persons: ________________________. If service of process is completed, the petitioner shall file proof of service of process with the court. If service of process is not completed, the steps to identify, locate, and serve [the person][these persons] shall be documented in a written report to be filed with the court prior to the next scheduled hearing. [Reasonable steps shall include, but not be limited to, the following: ______________________________________________________________.]

[OPT] 5.

The petitioner and the Idaho Department of Health and Welfare shall take

all reasonable steps to determine whether the child is an Indian child [children are Indian children], within the meaning of the Indian Child Welfare Act. If it is determined that the child is an Indian child [children are Indian children], the petitioner will serve process in accordance with the Indian Child Welfare Act and file proof of service with the court.

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The efforts to determine whether [the child is is an Indian child] [children are Indian children] will be documented in a written report to be filed with the court prior to the next scheduled hearing. [Reasonable steps shall include, but are not limited to, the following: ________ _________________________________________________________________.]

IT IS FURTHER ORDERED AS FOLLOWS:8 1. location.] 2. IDHW will prepare a written [case plan] [permanency plan]. The The [case plan] [permanency] hearing is scheduled for [date, time, and

petitioner will file the plan with the court and serve copies of the plan on the parties at least five days prior to the hearing. 3. The plan will identify the current foster care placement for the child,

including a statement of why that placement is the least disruptive environment and most family-like setting that meets the needs of the child. The plan will identify the services to be provided to the child and the foster family, including services to identify and meet any special medical, educational, emotional, physical, or developmental needs the child may have, to assist the child in adjusting to the placement, or to ensure the stability of the placement. 4. The case plan will include a reunification plan. a. The reunification plan will include all issues that need to be

addressed before the child [children] can safely be returned home, without IDHW supervision. Those issues include, but are not limited to, the following:

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____________________________________________________________________ ____________________________________________________________________ b. The reunification plan will specifically identify the tasks to be

completed by IDHW, each parent, or others to address each issue, including services to be made available by the agency to the parents and in which the parents are required to participate, and deadlines for completion of each task. c. The reunification plan will identify terms for visitation,

supervision of visitation, and child support, as appropriate. The plan shall provide for sibling visitation where appropriate. d. [Other]

5.

[The case plan will include an alternative permanency plan.] The

permanency plan will: a. [children]. b. Address the advantages and disadvantages of each option, in light Address all options for permanent placement of the child

of the child’s [children’s] best interest. c. interest. d. Specifically identify the actions necessary to implement the Include recommendations as to which option is in the child’s best

recommended option and deadlines for those actions.

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e.

Address options for maintaining the child’s [children’s] connection

to the community, including individuals with a significant relationship to the child and organizations or community activities with whom the child has a significant connection. f. Identify further investigation necessary to identify and/or assess

other options for permanent placement, to identify actions necessary to implement the recommended placement, or to identify options for maintaining the child’s significant connections. g. [Other]

6.

IDHW will involve the parent [parents] and the guardian ad litem in

preparing the [case plan] [permanency plan]. The parent [parents] will cooperate with IDHW in development of the [case plan] [permanency plan].

7.

IDHW will notify the child’s [children’s] foster parent [parents] of the

date, time, and location of the [planning] [permanency] hearing. Notice may be given by any reasonable means, and as promptly as practicable, and in any event at least seven days prior to the date of the hearing.

8.

[Protection Order]

9.9

[Other]

DATED this _____ day of ____________________, 20___.

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______________________________ Magistrate Judge CERTIFICATE OF SERVICE I certify that on the _____ day of _______________, 20_____, I served true and accurate copies of the foregoing document on the following persons, either by deposit in the U.S. Mail, addressed as follows and with the correct first-class postage affixed thereto, or by deposit in the designated courthouse mailbox, or by fax to the number indicated below, or by hand-delivery, as indicated below:

Name: Served by: [ ] Hand-delivery [ ] Deposit in the designated courthouse mailbox [ ] By fax to: ____________________ [ ] By deposit in the U.S. Mail addressed as follows:

Name: Served by: [ ] Hand-delivery [ ] Deposit in the designated courthouse mailbox [ ] By fax to: ____________________ [ ] By deposit in the U.S. Mail addressed as follows:

Name: Served by: [ ] Hand-delivery [ ] Deposit in the designated courthouse mailbox [ ] By fax to: ____________________ [ ] By deposit in the U.S. Mail addressed as follows:

Name: Served by: [ ] Hand-delivery [ ] Deposit in the designated courthouse mailbox

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[ ] [ ]

By fax to: ____________________ By deposit in the U.S. Mail addressed as follows:

____________________________ Deputy Clerk
Last updated September 21, 2007. Click http://www.isc.idaho.gov/childapx.htm for most current version.
1

The adjudicatory hearing is governed by Idaho Code §§16-1619 and by IJR 41. It is discussed in depth in Chapter V of the Idaho Child Protection Manual.
2

This form can also be used for an amended disposition. Idaho Code §16-1623 sets forth the procedure where a child was placed at home under the supervision of the department, the home situation deteriorates, and an amended disposition to place the child in the custody of the department is sought. When using this form for an amended disposition, findings 3-7 may be omitted (unless they need to be modified), but findings 8 and 9 must be included (the written case-specific findings of best interest/contrary to the welfare, and reasonable efforts to prevent removal).
3

If a parent, guardian, or other custodian fails to appear, the order should include findings that notice was served on the person who failed to appear. If a parent (including a putative father), guardian, or other legal custodian has not appeared and has not been served, the court should enter orders as necessary to ensure that the missing parties are identified, located, and served as early as possible in the proceedings, and that the court file contains documentation of service of process. Paternity testing may be necessary to confirm that a putative father is a child’s biological father. The importance of finding and including all parents whose rights have not been terminated, particularly in achieving permanency for the child, is discussed in the Idaho Child Protection Manual at §V.D.2
4

IJR 38 sets forth the requirements for stipulations in child protection cases. The rule requires the court to find that the parties entered the agreement knowingly and voluntarily, that the stipulation has a reasonable basis in fact, and that the agreement is in the best interest of the child. The rule further requires that an order based on the stipulation must include all case-specific findings required by state or federal law. Therefore, in addition to optional finding 2, the court must make findings 8 and 9. The failure to make findings 8 and 9 – even in the case of an agreement/stipulation – will jeopardize the child’s eligibility for federal funding.
5

The court should determine whether the child is an Indian child within the meaning of the Indian Child Welfare Act as early as possible in the proceedings. If the child is an Indian child, the court should ensure that notice is given in accordance with the act as early as possible in the proceedings and further ensure that the court file contains documentation of notice in accordance with the Act. The importance of compliance with ICWA, particularly in achieving permanency for the child, is discussed throughout the Idaho Child Protection Manual and specifically in Chapter XI of the Manual.
6

Regarding the “contrary to the welfare/best interest” finding: Idaho Code § 16-1619(6) requires a detailed, written contrary to the welfare/best interest finding in a decree vesting custody of the child in the department. Idaho Code § 16-1615(5)(d) & (e) require a contrary to the welfare/best interest finding in an order placing the child in shelter care. 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. This finding must be made in the first order sanctioning removal of the child from the home. 45 C.F.R. § 1356.21 (c). 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

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funding. Although unusual, it is possible for the decree to be the first order sanctioning removal of the child from the home. If the order is entered based on a stipulation, then the finding can be based on information documented in the court record, such as the verified petition and supporting affidavit. If the matter is contested, the court must make case-specific findings based on the evidence at the hearing, and those findings must be documented in the order. The finding may not be a simple recitation of the language in the statute. (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 is the ONLY way to meet the requirement for a written finding, although this is a costly substitute for a written finding.) The contrary to the welfare/best interest requirement is discussed in detail in the Idaho Child Protection Manual, §§ IV.E.1.b and IV.E.2.b. In addition, the court should inquire regarding IDHW’s proposed placement for the child to ensure that it will be the least disruptive placement available (the most family-like setting that meets the needs of the child), in accordance with Idaho Code § 16-1629(11). This is a factor in determining whether it is in the child’s best interest to vest legal custody in IDHW. The court does not, however, have authority to order a specific placement for a child placed in IDHW custody. See Idaho Code §16-1629(8) and the Idaho Child Protection Manual §§V.H.1.a.iii.
7

Regarding the “reasonable efforts to prevent removal” finding: This finding is not necessary if the child has not been removed from the home and the decree does not place the child in state custody. If the child is removed from the home, Idaho Code § 16-1619(6) requires a detailed, written, reasonable efforts to prevent removal finding in the decree. 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 therefore requires that this finding be made within 60 days after removal. 45 C.F.R. § 1356 (c) & (d). Failure to make the required finding in the required manner 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. If the order is entered based on a stipulation, then the finding can be based on information documented in the court record, such as the verified petition and supporting affidavit. If the matter is contested, the court must make case-specific findings based on the evidence at the hearing, and those findings must be documented in the order. The finding may not be a simple recitation of the language in the statute. (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, although this is a costly substitute for a written finding.) The reasonable efforts requirement is discussed in detail in the Idaho Child Protection Manual §§ IV.E.1.b and IV.E.2.b. and V.H. 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. Federal law contains no exception for an emergency removal of the child parallel to Idaho Code § 16-1608, where reasonable efforts to prevent removal were not possible due to imminent danger to the child; in those cases, in order to comply with federal law, the decree 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.
8

Regarding paragraphs 1 - 6 of the order: If aggravated circumstances are found, the department must immediately prepare a permanency plan. If aggravated circumstances are not found, and custody of the child is vested in the department, the department must prepare a case plan that must include both a reunification plan and an alterative permanency plan. If the child is placed at home under the department’s supervision, the department

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prepares a case plan that includes only the reunification plan. Idaho Code §§ 16-1620 & 16-16521 and IJR 41 & 44 The case plan must be filed within 60 days after the child is removed from the home or 30 days after the adjudicatory hearing, whichever is first. The permanency plan must be filed within 30 days after the finding of aggravated circumstances, which will usually be made at the adjudicatory hearing. The plan must be filed at least five days prior to the hearing. Therefore, the hearing should generally be 35 days after the adjudicatory hearing. Paragraph 3 requires IDHW to identify the foster care placement. The court does not have the authority to order a specific placement for a child placed in IDHW custody. See Idaho Code § 16-1629(11) and the Idaho Child Protection Manual, §V.H.1.a.iii. There may be instances where the name and identity of the specific foster family should be kept confidential for the safety of the child and the foster family. In such instances, the plan should sufficiently identify the nature of the foster care placement to enable the court to assess whether the placement is the least disruptive environment and most family-like setting for the child. Placement issues are further discuss in the Manual at §§ VI.B.5 and VII.A.7.a. The agency is required to consult with the parents and the GAL in preparing a case plan. Even if aggravated circumstances were found, parental rights have not been terminated, and consultation with the parents will likely be necessary to get information about potential family placements.
9

The order should include any other matters that need to be addressed to provide for the welfare of the child, to promote resolution of the case, or to ensure that the parties are ready for the planning or permanency hearing. For example: ___ Orders needed for examination, evaluation, or other services pending the planning or permanency hearing ___ Orders needed for release of information (medical records, school records) ___ Orders for sibling visitation if siblings have been removed from the home and given different placements ___ Orders required for paternity testing ___ Orders requiring a GAL report ___ Orders regarding other persons to be summoned for the case plan or permanency hearing ___ Orders for mediation ___ Transport orders (if parent is in jail or prison, if child is in detention or juvenile corrections).

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