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petition under child protective act

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									Petition 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 Interest of:                           )       Case No.:
                                              )
CHILD’S NAME                                  )       PETITION UNDER THE
[CHILD’S NAME]                                )       CHILD PROTECTIVE ACT
                                              )       [AND MOTION FOR
A child under eighteen years of age.          )       ENDORSEMENT ON SUMMONS]
[Children under eighteen years of age.]       )       [AND MOTION FOR
________________________________              )       PROTECTION ORDER]

       1.     This petition is filed by _______________, [ _______________ 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] abused, abandoned, neglected, homeless, or lacks [lack] a stable
home environment. 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 asks
for an endorsement on the summons pursuant to Idaho Code §16-1606. This petition
asks that the endorsement order a peace officer or other suitable person 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 a full 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 ______________,
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 purview 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 of was notified of the placement on
_________ by ___________________________.



PETITION UNDER CHILD PROTECTIVE ACT                                                  PAGE 1
[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.      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 [for
the reasons described in the Affidavit of _____________________, dated __________,
which is attached to and incorporated in this petition] [because: ___________________
_____________________________________________________________________.]
                b.      Reasonable efforts were made prior to removal of the child
[children] to prevent the need to remove the child [children] from the home. The efforts
to prevent removal [are described in the Affidavit of ____________, dated __________,
which is attached to and incorporated in this petition] [were as follows: ______________
____________________________________________________________________ ].
[ALT] 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.      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 [for
the reasons described in the Affidavit of ____________________, dated __________,
which is attached to and incorporated in this petition] [because: ___________________
_____________________________________________________________________.]




PETITION UNDER CHILD PROTECTIVE ACT                                                    PAGE 2
               b.      Reasonable efforts to prevent removal of the child [children] from
the home were not made because the parent [parents] subjected the child [children] to
aggravated circumstances.
               c.      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: _______________
____________________________________________________________________ ].

6.      The name, birthdate, sex, and residence address of [the child] [each child] are
__________________________________________________________________.
[ALT] 6.        At this time, the [name] [birthdate] [residence address] of the child
[children] is unknown, but the child was [children were] found within the State of Idaho,
in _______________ County.]

7.              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.

       8.       A court has not adjudicated the custodial rights of the child’s [children’s]
parents.
[ALT] 8.        A court has adjudicated the custodial rights of the child’s [children’s]
parents, and the custodial status of the [each] child is _______________________.
[ALT] 8.        At this time, it cannot be determined whether a court has adjudicated the
custodial rights of the child’s [children’s] parents.




PETITION UNDER CHILD PROTECTIVE ACT                                                   PAGE 3
        9.       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] 9.         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] 9.         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] 9.         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.

        10.     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] 10.       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] 10.       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.

11.     As to the child [children] listed in paragraph 10:
                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.
                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 __________________________________.

        12.    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] 12.      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: ____________________________________.




PETITION UNDER CHILD PROTECTIVE ACT                                                  PAGE 4
[At this time, it cannot be determined whether there are other legal documents controlling
the custodial status of any child listed above.]
[ALT] 12.        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).

       13.     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 §16-1618.

[ALT] 14.       The alleged offender has been removed from the children’s home pursuant
to Idaho Code §16-1612. This petition asks that the court enter a protection order
pursuant to Idaho Code § 16-1612(c), 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.

       DATED this _____ day of _______________, 20___.



                                                      ____________________________
                                                      Name
                                                      Title (PA, DPA, or DAG)




PETITION UNDER CHILD PROTECTIVE ACT                                                  PAGE 5
STATE OF IDAHO                 )
                               ) ss.
County of _____________        )

       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:


NOTES:

1. Idaho Code §16-1605 directly governs the petition in a child protection case..

2. Alternative language is provided to address varying situations, and is marked in
brackets, or is preceded by [ALT].

3. All of the information required by the form is required by the statute. If any of the
information cannot be determined, the petition must say so – the space for the
information cannot be left blank. Also, information in the petition may be based on
information and belief, but the petition (or an affidavit incorporated by reference in the
petition) must state the basis for the information and belief.

4. 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.

5. The child protection petition is discussed in the Idaho Child Protection Manual at
§III.B.1. The social worker’s affidavit is discussed at §III.B.2. The facts supporting the
fining of a CPA action are discussed in § III.D.



PETITION UNDER CHILD PROTECTIVE ACT                                                   PAGE 6
6. Written, case-specific findings of best interests/contrary to the welfare. Idaho Code §
16-1606(d) requires the court to make written findings that removal of the child from the
home is in the child’s best interests and that remaining in the home would be contrary to
the child’s welfare. Federal law requires these same findings to be made in the first court
order sanctioning removal of the child from the home. 45 C.F.R. § 1356.21 (c)&(d). In a
case in which the child is removed pursuant to an endorsement on summons, the first
order sanctioning removal is the order granting the endorsement. The court’s order may
recite the specific factual basis for the finding or it may refer to and cross-reference other
documents as the basis for the finding. Failure to make this winding will result in the lass
of federal IV-E funding for the child. See Idaho Child Protection Manual Chapter IV.

7. Written case-specific findings of reasonable efforts to prevent removal. Federal law
requires that the court make written, case-specific findings that the state made reasonable
efforts to prevent removal of the child from the home within the first 60 days after
removal. 45 C.F.R. § 1356 (c)&(d). If these findings are not made during the 60 day
time period, the child’s IV-E funding is jeopardized. Idaho law requires that these
finding be made at the shelter care hearing and at the adjudicatory hearing. Idaho Code
§§ 16-1614(e)(4)&(5) and 16-1608 (e). The best practice is to begin establish the record
regarding the agency’s efforts at each stage of the process. Thus findings should be made
at the time endorsement is ordered, regarding the agency’s efforts to prevent placement.

Last Updated May 21, 2002. Click http://www2.state.id.us/judicial/material.htm for updates




PETITION UNDER CHILD PROTECTIVE ACT                                                          PAGE 7

								
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