Temporary Protective Custody Hearing

1. Temporary Protective Custody Hearing Shelter Hearing Advisement Hearing Preliminary Protective Proceeding Detention Hearing

2. Emergency 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.

3. Deciding whether to take emergency 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.

4. Criteria 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.

5. Criteria 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.

6. Criteria 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

7. 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.

8. Temporary Protective Custody (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.

9. Emergency 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.

10. Burden 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

11. Burden 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.

12. Burden 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

13. Timing • 72 hours after removal • 72 hours after protective orders entered • Excluding weekends and holidays • NOT jurisdictional

14. Relatives • 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)

15. Relatives • 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

16. 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.

17. Relatives • 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

18. Defenses at TPC • Volume 7 process – identify family strengths, identify needed services • Emergency? • Reasonable Efforts? • Safety Plan? • Placement with kin • Effect of admissible hearsay

19. Seeking 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 • Evaluations (need agreement for immunity)

20. 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.

21. Client Counseling • Consider the following when deciding whether to contest the hearing or not: • Defenses? • Witnesses? • Likelihood to prevail? • Placement and visitation?

22. Client 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

23. Client 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 Remedial action Impact

24. 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)

25. TPC Checklist Review • Before the hearing: • Petition • Client interview • Contact information • Formulate a position • Success stories of pre-court advocacy?

26. TPC Checklist Review • During the hearing: • ICWA • Visitation • Service referrals • Kinship investigations

27. TPC Checklist Review • After the hearing   • Client Appointment • Service referrals • Visitations • Relatives

28. Reasonable Efforts • Has the Department asked that efforts be excused and on what grounds? • Could reasonable efforts still be made?

29. Safety Planning Options • Was a safety plan considered? • What options are there?

30. Definitions of Neglect • How do Ms. Tillman’s actions meet the Department’s definition of neglect? Volume 7.202.6: • “Minor – physical or emotional needs of child are marginally or inconsistently met, but little or no impact on child’s functioning”; • “Medium – physical or emotional needs of child are inadequately met resulting in some impairment in the child’s functioning”; or • “Severe – physical or emotional needs of child are not met resulting in serious injury or illness” • What did she do that meets any of the above?

31. Definitions of Neglect Continued • If Ms. Tillman’s actions do not, or barely, meet the definition of minor neglect, then what arguments will the Department make to justify removal?

32. Look at the Department’s criteria for removal, Vol. 7.304.3, for questions to use on cross-examination of the caseworker.

33. Relatives • What about placement with relatives?

34. Services • What is the impact on mom completing a substance abuse or psychological evaluation prior to adjudication? • Can statements she makes in the evaluation be used against her at the trial? • Will a C.R.S. § 19-3-207 order protect her statements? • How is such an order obtained? • Are the evaluations reasonable?

35. Adjudication Offer • Impact of a no fault admission on the case?

36. Possible Defenses?