preliminary protective proceeding

1. preliminary protective proceeding Shelter Hearing Advisement Hearing Temporary Protective Custody Hearing 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 home 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- Note Vol. 7 (12 CCR2509-1) at 7.001.41G: Title IV-E foster funds extend to the child of a teenage parent who is eligible for these funds. • 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 are 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 • Identify appropriate parent/relative/caretakers • Assess the parent/r/c ability to protect • Ability to assist the parent/r/c in accessing services.

8. Preliminary Protective Proceeding (PPP) Hearing • C.R.S. §19-3-403; 405 • When the Department has taken emergency protective custody of a child, a PPP 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 is admissible.

11. Burden of Proof Under ICWA • 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- 25 U.S.C. §1915(b): • Child’s extended family • Member of child’s tribe • Member of another tribe • Foster care

13. Timing • 72 hours after removal; 48 hours for police hold • 72 hours after protective orders entered • Excluding weekends and holidays • NOT jurisdictional

14. Placement Options • Preference to relatives • Relative must be willing, capable, and appropriate • Child’s best interests • C.R.S. §19-3-403 (3.6) (a) (III)

15. Placement Options, continued • Otherwise Court Considers: • Child’s safety • Least restrictive environment • Appropriate to child’s needs • Near parents/community • Educational needs of child • Cultural considerations • Family’s religious preferences • Availability and costs • Sibling placement • 42 U.S.C. 675 (5) (A)

16. Relatives • How do you know if they are appropriate? • CBI and Trails/state central registry check • Federal law under the ASFA, codified in Colorado, at C.R.S. §19-3-406, eliminates people with certain convictions from consideration for placement. • 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

17. Relatives, continued • Appropriate also often means the Department approves of placement with them. • Volume 7 regulations permit emergency placement: • Kin 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.

18. Relatives, continued • Volume 7.304.2 • Placement with kin can be voluntary. • Kin are entitled to foster care payment if they become licensed. • Kin are entitled to foster care payment. It is NOT a need based calculation. • 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

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

20. Contesting the PPP Hearing • 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 PPP.

21. Seeking Visitation Orders • Reunification is dependent upon frequent and meaningful visitation. • Agency office visits are the worst locations for families to visit. • Ask that Department follow best practices regarding visitation. • Ask client to identify someone who may be able to supervise visits outside of the Department – a friend, relative, pastor, community worker. Then ask the court to order Department to investigate this person as a visitation “host.” • If visitation at the Department is limited because of staffing or financial concerns, consider asking the court to order visitation at a community visitation agency. Find Colorado agencies, contact information, and pricing at: http://www.svdirectory.com/

22. Application for Visitation Argument • C.R.S. §19-1-103 (89): “ ‘Reasonable Efforts’ …..means the exercise of diligence and care throughout the state of Colorado for children who are in out-of-home placement…..In determining whether it is appropriate to provide, purchase, or develop the supportive and rehabilitative services that are required …to foster the safe reunification of a child with a child’s family…..the child’s health and safety shall be the paramount concern….”… -plus- • C.R.S. §19-3-208 (2)(b)(IV): “…[the] following services shall be available…visitation services for parents with children in out-of-home placement….”-plus- • 12 CCR 2509-4 J sections 1, 2, and 6 : “…The visitation plan shall specify the frequency, type of contact, and the person(s) who will make the visit. At a minimum the plan shall provide the methods to meet….the growth and development of the child…-plus- • CDHS and Family Services Review 1/28/09: parents should be encouraged to attend doctor, physical therapy and other appointments…serves the dual purpose of additional contact and helping the parent learn appropriate care … (pp. 59-60)

23. Litigating the Application for a Visit Host • Argue: Providing a means for your client to see her children is a “reasonable effort” in support of reunification and promotes the children’s health and well being in that current minimum practice only permits the child to see her parents the equivalent of two days per year and more frequent visits that are fun, supportive and mimic family life are more likely to help the child maintain her attachments. C.R.S. §19-1-103 (89) • Argue: DHS is responsible for providing “visiting services” for a child separated from parents by foster care. C.R.S. §19-3-08 (2)(b)(IV). Applicable regulations make clear that a visiting plan is supposed to meet the developmental needs of a child and should progress as reunification gets closer. 12 CCR 2509-4 J sections 1, 2, and 6. • Argue: CDHS has recognized that better visiting plays a key role in safe reunification, that visiting should be organized around typical parenting events ,and that people outside the caseworker should be accessed to be a resource to provide more visits. • Argue: Your client should not be compromised or deprived of the benefit of the law and recognized best practices because of scarce resources- visit hosts are win-win.

24. Seek Orders for Services • Services: when appropriate and client agrees: • Referral for substance abuse evaluation and monitoring • Mental health evaluation and treatment • Evaluations: need agreement for immunity

25. Admissions at PPP? • 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. • 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.

26. PPP Motions Practice • Possible written motions after PPP hearing • Motion for reconsideration, or motion for district court review if heard by magistrate • 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)

27. PPP Checklist Review • Before the hearing: • Petition • Client interview • Contact information • Formulate a position

28. PPP Checklist Review • During the hearing: • ICWA • Visitation • Service referrals • Kinship investigations

29. PPP Checklist Review • After the hearing   • Client Appointment • Service referrals • Visitations • Relatives 10 Minute Networking Break

30. PPP Hearing Exercise- Breakout Groups • Break into groups based on the sticker color on your nametag. • You will need Handout 7: D&N Intake and Handout 9: Conversations Prior to PPP Hearing

31. Client Counseling and overcoming communication obstacles Building a Healthy Child Welfare System

32. Colorado Practice Standards Colorado Standards for RPC • Training • Competent Representation • Communication • Documentation

33. Colorado Practice Standards, continued • Investigation: facts and timing • Agency Advocacy: services and placements • Client Location: keeping track • Cultural Awareness: impact on case success • Appeals

34. Client Location Several sources: • Federal parent locator service: http://www.acf.hhs.gov/programs/cse/newhire (accessible by DSS) • Colorado Corrections: www.doc.state.co.us/oss. Need DOB or DOC number. • Criminal background checks: www.cbirecords.com • To find any person: www.switchboard.com • ICON access at: https://www.jbits.courts.state.co.us/pas/pubaccess/index.cfm

35. ABA Standards of Practice forAttorneys Representing Parents General Principle: Understand and protect the parent’s rights to information and decision-making while the child is in foster care.

36. Client Communication and Counseling • Introducing the client 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

37. Client Communication and Counseling, continued 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

38. Relationship With The Client: • Advocate for the client’s goals and empower the client to direct the representation and make informed decisions based on thorough counsel. • Provide the client with contact information in writing and establish a message system that allows regular attorney-client contact.

39. Relationship With Client, continued Meet and communicate regularly with the client well before court proceedings. Counsel the client about all legal matters related to the case, including specific allegations against the client, the service plan, the client’s rights in the pending proceeding, any orders entered against the client and the potential consequences of failing to obey court orders or cooperate with service plans.

40. Relationship With Client, continued • Work with the client to develop a case timeline and tickler system. • Act in a culturally competent manner and with regard to the socioeconomic position of the parent throughout all aspects of representation. • Take diligent steps to locate and communicate with a missing parent and decide representation strategies based on that communication. • Be aware of the unique issues an incarcerated parent faces and provide competent representation to the incarcerated client. • Be aware of the client’s mental health status and be prepared to assess whether the parent can assist with the case.

41. Investigation and Discovery • Conduct a thorough and independent investigation at every stage of the proceeding. • Review the child welfare agency case file. • Obtain all necessary documents, including copies of all pleadings and relevant notices filed by other parties, and information from the caseworker and providers.

42. Adjudication Hearing Factfinding Trial

43. Before the Adjudicatory Hearing • Advisement hearing • Often the chance to enter a denial or an admission to the petition • Sometimes advisement hearings, or 1st hearings, are used as control dates for return of service for noncustodial parents. • Formal advisement • Opportunity to make an admission • RPC should very carefully weigh the advantages and disadvantages for the client to making an admission at the first hearing. • Advantages include proceeding more quickly to the treatment plan and receiving services and perhaps reunifying the family faster. • Disadvantages: no time for an investigation, no time to obtain records and discovery, and no time to create any possible defenses.

44. Admissions Generally • Admission includes waiver of factual basis • Request C.R.S. §19-3-207 orders to protect client’s statements. • A C.R.S. §19-3-207 (2) order is a protective order that says no professional can be called to testify about anything the respondent said during treatment in a subsequent criminal proceeding. • Consider seeking an interim treatment plan to obtain services as quickly as possible

45. Informal Adjustment • When parties are before the court, • But before a D & N petition is filed, • Court may authorize an informal adjustment • Parents must be advised and are entitled to counsel • Parents admit facts necessary to establish prima facie jurisdiction: the admission, however, may not be used later if a petition is filed. • Informal adjustment may not last longer than 6 months. • C.R.S. §19-3-501

46. Deferred Adjudication(delayed dismissal or continued adjudication) • When parties are before the court • And a D & N petition has been filed • Court may authorize deferred adjudication (delayed dismissal) • Requires: • Admission by parent • Consent of all parties • Conditions – similar to treatment plan • 6 months plus 6 months • Governed by C.R.S. §19-3-505(5)

47. Admissions • No fault. C.R.S. §19-3-102 (1) (e): • Some jurisdictions routinely use “no-fault” admissions, as a way for the court to gain jurisdiction over the parties and enable the court to order a treatment plan. • One parent’s no-fault admission cannot be used against the other parent. • Impact: • Court has jurisdiction over parties and the subject matter and can enter orders against all parties. • Homelessness should not be used as the sole basis to sustain a petition of dependency.

48. Admissions • Injurious environment C.R.S. §19-3-102(1)(c) • Waive or stipulate to a factual basis: agree to address all issues in treatment • Lacks proper care through acts or omissions C.R.S. §19-3-102(1)(b) • Beyond control of parent C.R.S. §19-3-102(1)(f) • Admission by one parent not enough to adjudicate against the other parent. Other parent still has a right to a trial. • People in the Interest of A.M., 786 P.2d 476 (Colo. App 1989).

49. Settlement Conference • Not used in all jurisdictions • Who runs it • Family court facilitator or magistrate • Issues • Negotiated settlement • Possible treatment plan • Fathers • Agreements • Some jurisdictions allow these to be immediately entered on the record.

50. Pretrial Conference • Pretrial issues • Witness lists • Jury instructions • Not always a hearing: • Some jurisdictions use case management/trial management orders