TEMPORARY PROTECTIVE CUSTODY HEARINGShelter Hearing

Advisement Hearing

Preliminary Protective Proceeding

Detention Hearing

Emergency CustodyEmergency Custody

Law Enforcement may remove a child without a court order if the child is seriously endangered or seriously endangers others.

The Department may remove a child with an ex parte court order, if necessary because there is a danger to the child’s life or health.

The court may also issue ex parte protective orders, without removing the child.

Deciding whether to take Deciding whether to take emergency custodyemergency custody

7.304.3 Out-of-home placement criteria In deciding whether to remove a child, the

Department looks at 3 criteria. All three are required to be met prior to removal.

Criteria 1Criteria 1

Under Volume 7, a child can be at risk for out of placement because of: Abandonment; Abuse/neglect; Domestic violence; Caretaker unable to care for child because of

substance abuse, mental illness, disability, illness, homelessness;

Child beyond control of parent; Danger to self or others; Infant or young child of teen in placement; Delinquency; Relinquishment or termination of parent rights; Child returning home from placement.

Criteria 2Criteria 2

Assess LEVEL of risk for removal (Volume 7.202.5)

If imminent: Then determine child/family strengths And identify appropriate services (reasonable

efforts) If services not available, are unsuccessful, or

exhausted, removal may be considered.

Criteria 3Criteria 3

Removal appropriate when placement is best choice of available options Volume  7.304.5 BUT must continue reasonable efforts to

resolve conditions which led to imminent risk

Reasonable Efforts

Reasonable efforts: Identify appropriate

parent/relative/caretakers Assess the parent/r/c ability to protect Ability to assist the parent/r/c in accessing

services.

Temporary Protective Custody Temporary Protective Custody (TPC) Hearing(TPC) Hearing

C.R.S. §19-3-403; 405 When the Department has taken

emergency protective custody of a child, a TPC hearing is held to determine whether that custody should continue with the Department or whether the child should be returned to his or her parents.

Emergency Protective OrdersEmergency Protective Orders

If the Department did not take custody on an emergency basis, but instead sought ex parte protective orders, this hearing is held to modify or continue those orders.

If the Department has not sought any ex parte orders, either custody or protection orders, this hearing is the first chance to make such requests.

Burden of ProofBurden of Proof

Department has the burden of proof Standard for a non-Indian child is

whether the custody or protection order is appropriate and in the child’s best interests. C.R.S. §19-3-403(3.6)(a)(V).

Any probative evidence admissible

Burden of Proof Under ICWABurden of Proof Under ICWA

Indian child Different standard for removal for an

Indian child Who is an Indian child?

Member of an Indian tribe; or Eligible for membership

and is the biological child of a member.

Burden of Proof Under ICWABurden of Proof Under ICWA

Standard for removal: Active Efforts Child must face serious emotional or physical

damage if left in the home Standard of proof is clear and convincing

evidence Including testimony of a qualified expert witness.

Placement preferences if child is removed: Child’s extended family Member of child’s tribe Member of another tribe Foster care

TimingTiming

72 hours after removal 72 hours after protective orders entered Excluding weekends and holidays NOT jurisdictional

RelativesRelatives

Preference to relatives Discretionary Temporary custody or placement Relative must be willing, capable, and

appropriate Child’s best interests C.R.S. §19-3-403 (3.6) (a) (III)

RelativesRelatives

How do you know if they are appropriate? CBI and Trails/state central registry check

(initiated within a day) Federal law under the Adoption and Safe Families Act,

codified in Colorado, at C.R.S. §19-3-406, eliminates people with certain convictions from consideration for placement. These include child abuse, certain crimes of violence, unlawful sexual behavior, domestic violence, and drug related offenses within the past 5 years.

People with certain other convictions MAY be approved by the court, but it is discretionary.

Have space/provisions Can be protective Will facilitate parent/sibling contact

Relatives Relatives

Appropriate also often means the Department approves of placement with them.

Volume 7 regulations permit emergency placement: The relative does not have to be certified prior to

placement Placement can be done on emergency basis –

“visitation basis” Kin are eligible for supportive services, including

medicaid, child care, family preservation services, and core services to make placement viable.

RelativesRelatives

Volume 7.304.2 Placement with kin can be voluntary. Kin are entitled to foster care payment if they become

licensed. It is a little known secret that kin are entitled to foster care

payment. If they would like to receive payment, they can. It is NOT a need based calculation. The catch is that they will need to become certified, just as other foster parents, and some relatives do not want the additional burden of attending training classes and following all the department rules and regulations.

If relatives do not choose to become certified, they may choose to apply for Relative TANF for public funds to help support the child. They could also ask for child support from the Department.

Broad definition of “kin” Relatives or persons with a “family like” relationship

Defenses at TPCDefenses at TPC

Volume 7 process – identify family strengths, identify needed services

Emergency? Reasonable Efforts? Safety Plan? Placement with kin Effect of admissible hearsay

Seeking OrdersSeeking Orders

Seeking orders: Visitation when out of home placement is ordered

Reunification is dependent upon frequent and meaningful visitation. See e.g. S. Leathers, “Parental Visiting and Family Reunification: Could Inclusive Practice Make a Difference?” Child Welfare 81 (4), 2002, 595-616, and

Agency office visits are the worst locations for families to visit. See W. Haight et al “Understanding and Supporting Parent-Child Relationships During Foster Care Visits: Attachment Theory and Research”, Social Work 48 (2), 2003.

Services: when appropriate and client agrees -- Referral for substance abuse evaluation and monitoring Mental health evaluation and treatment

Evaluations - need agreement for immunity

Admissions at TPC?Admissions at TPC?

Good idea or bad idea ? Benefits

The rationale for this is to fast track the case to the treatment plan phase and to provide services to the family as soon as possible, thereby speeding reunification.

Risks The risk of making an admission to not just the petition for

Temporary Protective Custody, but also to the petition in dependency and neglect is the rush to prejudge the facts prior to an investigation and completing discovery.

Do the facts matter? Local practice

It is important to know what is typical practice in your jurisdiction, but it is just as important to make a case by case decision about what process to follow.

Client CounselingClient Counseling

Consider the following when deciding whether to contest the hearing or not: Defenses? Ask your client factual questions to

determine any possible defenses Witnesses? Ask your client to identify the presence of

helpful witnesses, if any Likelihood to prevail? Discuss with client what you

believe are the chances Placement and visitation? Discuss with client the

alternatives RPC 1.2 - Client decides the objective of the

representation, and the lawyer decides the means. Client decides whether or not to contest TPC

Client CounselingClient Counseling

Introduction to the system: What to cover:

Whether to contest the removal Explaining process Answering questions, particularly about visits Relatives and other support Native American heritage

What to save for another day Fact investigation Witnesses Health care and mental health needs Older children Religion and culture

Advisement of rights : watch for new English/Spanish video version in 2011

How to be successful

Client counselingClient counseling

Ethical issues client with disability: Rules of Professional Conduct 1.14

See “Representing the Mentally Retarded or Disabled Parent

in a Colorado Dependent or Neglected Child Action,” 11 Colo. Law. 693 (1982).

Determining whether client has a disability: Can client make reasoned decisions? Can client appreciate consequences? Can client take positions consistent with his or her best interests?

Remedial action Consult with family members. Request a GAL for parent

Impact Weigh the pros and cons Signals to court that parent may not be able to parent

TPC Motions Practice

Possible written motions after TPC hearing Motion for reconsideration Motion for change of placement Motion for deposition of witness Motion for discovery Motion to conduct kinship home study Motion for physical or mental examination, CRE

37 Motion to exclude evidence at trial Motion to redact hearsay within hearsay Subpoena for author of a report C.R.S. 19-1-

107(2)

TPC Checklist ReviewTPC Checklist Review

Before the hearing : Petition Client interview Contact information Formulate a position

Success stories of pre-court advocacy?

TPC Checklist ReviewTPC Checklist Review

During the hearing : ICWA Visitation Service referrals Kinship investigations

TPC Checklist ReviewTPC Checklist Review

After the hearing  Client AppointmentService referralsVisitationsRelatives