Family and Child Welfare Issues

Family and Child Welfare Issues A Presentation By the Virginia Poverty Law Center Christie marra Staff attorney in family and child welfare 700 E Main St. Suite 1410, Richmond, VA 23219 T: 804-782-9430 F: 804-649-0974

VPLC The statewide support center for legal aid in Virginia providing support in advocacy training litigation on the civil justice issues faced by low-income Virginians

Child Welfare • What is the Child Welfare system? • Two systems: • Child Protective Services: • “Prevention Services” • Complaints of abuse and neglect • “Family Assessment” vs. “Investigation” • “Diversion” • Court system: Protective Orders Removal Orders Placement of children in foster care Clear right to services and court-appointed counsel

Child Protective Services • “Prevention Services”: • No current, pending complaint of child abuse or neglect • No issue regarding child safety • Acceptance of services is voluntary • Services can include referrals for mental health treatment in the community; assistance with obtaining funding for such treatment; help with transportation, help communicating with landlords, help navigating the local school system, etc. • The higher the risk of out of home placement, the more intensive the services provided (ex: in home)

Child Protective Services • Complaints of abuse and neglect • What is child abuse or neglect under Virginia law? • Causing/threatening to cause non-accidental injury • A child with his/her caretaker during the manufacture of illegal drugs • Neglecting or refusing to provide care necessary for child’s health (broadly interpreted by DSS) • Abandoning a child • Allowing sexual acts to be committed on a child or committing such acts • Being unable to care for a child due to unreasonable absence or mental or physical incapacity • Leaving a child alone with a registered sex offender (unrelated to the child)

Child Abuse or Neglect • Who makes complaints of child abuse or neglect? • A complaint of child abuse or neglect may be made by anyone • However, people in certain professions are “mandated reporters” and MUST report suspected child abuse or neglect (examples: doctors, teachers, child care workers) How are complaints made and what happens next? • Complaints are made through the Child Abuse Hotline • If an investigation is conducted, it must be completed within 45-60 days from the date of the report • If CPS staff determine that the report does not need to be investigated and there is no immediate threat to the child’s safety 0r well-being, CPS may do a “family assessment” and offer services to the family

“Family Assessment” vs. “Investigation” A “family assessment” will usually result in services being offered to the family Services offered to the family as a result of a family assessment are voluntary; however, failure to accept services could trigger other actions if it is later determined that there is a risk to the child as a result of services being refused An “investigation” occurs if there is a determination that the child is at risk OR the law mandates that an investigation be conducted DSS can interview the child even without the consent of a parent during the course of an investigation

“Family Assessment” vs. “Investigation” There is no formal finding of abuse or neglect as a result of a family assessment A formal CPS investigation may result in a finding of abuse or neglect The CPS finding is an administrative finding, and can result in the parent or caretaker’s name being placed in the Central Registry of child abuse and neglect for up to 18 years past the date of the complaint (for most serious abuse/neglect; less serious remain in CR for 7 or 3 years, depending on level of severity) CPS administrative findings can be appealed to the local director, then to state DSS and finally to circuit court

“Diversion” “Foster Care Diversion” definition in VDSS manual: “A strategy to prevent or eliminate the need for foster care placement by engaging caregivers in a process to identify relatives and/or nonrelatives who can provide short term or long term care for their children outside the foster care system and to support the move through services provided to both families and the child.”

“Diversion: • Important things to note about “Diversion”: • Placement by the parent with another caregiver is voluntary • Placement with another caregiver may result in the caregiver seeking and obtaining a court order giving him or her custody • Whether and what services are provided to the parties involved (parent, new caregiver, child) is determined by the local DSS that facilitates the diversion • Unlike foster care placements, voluntary placements under the diversion practice have no time limits • Because a child who is diverted is no formally placed in foster care, state and federal deadlines for reunification/permanency do not apply (and parental doesn’t face permanent loss of rights)

Foster care and the Courts • How does a child come into foster care? • DSS files an emergency removal petition • Emergency removal petitions can be decided based on an affidavit and in the absence of the parent/caretaker • Judge will enter an order allowing DSS to remove child and place the child in foster care if she finds that the child “would be subject to an imminent threat to life or health to the extent that severe or irremediable injury” would likely result if not removed • Another hearing must be held no later than five business days after removal • Parent/caretaker gets notice of the hearing and the allegations, has a right to present evidence and a right to counsel • Court appoints counsel for indigent parents

Foster care and the Courts • What happens once a child comes into foster care? • Usually, the initial goal will be to return the child to his or her parent • As long as the goal is “return home” DSS must provide services to the parent to help him or her reach that goal • Services are also provided to the child to help address the consequences of the abuse or neglect • Court hearings are held periodically, with the first being approximately 75 days after the child comes into care • At each hearing, the parent is represented by the same attorney and the child is represented by the same guardian ad litem (an attorney advocating for the child’s best interest)

Foster care and the Courts • Is there a time limit to how long a child can stay in foster care? • Under both state and federal law, once a child has been in foster care 12 consecutive months (or 15 of the past 22 months) DSS must move to terminate parental rights (but judge can maintain the goal of Return Home if she finds that parent has made marked progress toward reunification) • If however the parent has not made marked progress, court can set a hearing on whether to terminate parental rights • Court will terminate parental rights if parents have not substantially remedied the problems that led to the foster care placement (despite services from DSS) AND termination is in the best interest of child

Family Law • We will briefly go over: • Custody • Visitation • Child Support

Custody • Who can petition for custody of a child? • Anyone with a “legitimate interest” in the child, which is broadly construed to accommodate the best interest of the child. • People who are prohibited from filing a petition for custody of a child are: • Anyone whose parental rights to the child were terminated by court order • Anyone whose interest in the child derives from or through someone whose parental rights have been terminated • Anyone who conceived the child at issue through rape or carnal knowledge of a 13-15 year old

Custody • How does the court determine who gets custody? • The judge will base her decision on what is in the best interest of the child • In deciding what is in the best interest of the child, the judge should consider: the age and physical and mental condition of the child and each parent; the relationship between each parent and child and each parent’s willingness to support the other parents’ relationship with the child; needs of the child; the role each parent has played in the child’s upbringing so far; the reasonable preference of the child; any history of family abuse or sexual abuse along with any other facts relevant to the child’s best interest

Custody • How hard is it for a nonparent to take custody away from a parent? • Virginia law presumes that it is in a child’s best interest to be in the custody of a parent • This presumption can be rebutted by certain facts, however, such as the parent abandoning the child or voluntarily giving the child to someone else

Visitation • Who can petition for visitation? • Again, anyone with a legitimate interest • However, the court must respect the wishes of the parent unless there is a showing that the child would be harmed if the visitation were not ordered

Child Support Parents have an obligation to provide support for their children until the children reach 18 years of age Parents can be ordered to pay support for a child until the child turns 19 if the child is (i) a full-time high school student (ii) not self-supporting and (iii) living in the home of the parent seeking support Parents can also be ordered to pay support for children over the age of 18 who are (a) severely and permanently mentally or physically disabled (b)unable to live independently and support themselves and (c) residing in the home of the parent seeking child support

Child Support • How is the amount of child support determined? • The court (or the Division of Child Support Enforcement) uses a formula set out in the law and a set of “guidelines” • The formula and the guidelines are based on the joint monthly income of the parents, the cost of work-related child care and the cost of health care • A court can “deviate” from the amount of child support the guidelines dictate for certain reasons (such as imputation of income to a parent who is unemployed or underemployed)

Thank You • For more information about civil legal matters, go to the statewide legal aid website: • www.valegalaid.org The Virginia Poverty Law Center is a non-profit committed to serve the needs of low-income Virginians. The work of the center is supported by individual and corporate donors and through lawyer’s IOLTA accounts. If you would like to find out how to give to our general or specific efforts, please contact us at donate@vplc.org

Family and Child Welfare Issues