OVERVIEW OF CPA PROCEEDING
Child Protective Act is designed for the protection of abused,
abandoned and neglected children. Below is an overview of the various different
elements that make up a standard CPA proceeding.
Initiation of proceeding
Child Protective Act proceedings are usually initiated by the
prosecutor's office following a referral by law enforcement or the Department of
Health and Welfare. In some situations a juvenile prosecution may be expanded,
by order of the presiding judge, to incorporate the provisions of the Child
Protective Act.
Removal of Children for their Home
A child can be removed from their home when it is determined by
a law enforcement officer or by a judge that the child is endangered in his/her
surroundings and prompt removal is necessary to prevent serious physical or
metal injury to the child or where the child is an abandoned child. In such
cases, a shelter care hearing must be held within 24 hours of the removal of the
child. The parents must be notified as soon as possible that the child has been
removed and the time and place of the shelter care hearing.
Appointment of an Attorney
Parents, guardians and the child are entitled to have an
attorney appointed, at county expense, if they are indigent and, therefore,
unable to retain counsel of their choosing.
Shelter Care Hearing
The parents must be given 24 hours notice prior to the shelter
care hearing. This is an informal hearing. The purpose of the hearing is to
determine if the child should remain in a place of shelter care, e.g., a
licensed foster care home, until such time as an adjudicatory hearing is
complete and a disposition made by the court regarding the future care and
residence of the child or if the sufficient safeguards are or can be put in
place to guarantee the safety of the child during the pendancy of the case.
Investigative Report
Following the shelter care hearing or once an adjudicatory
hearing has been set, the Department of Health and Welfare is required to
investigate the circumstances of the child and his/her family and file a report
with the court. The investigative reports are made available to all of the
parties at or before the pretrial conference.
Pretrial Conference
The law provides for a pretrial conference to be held within
three (3) to five (5) days of the adjudicatory hearing. The parties use these
conferences to attempt to come to an agreement about what should be done with
the case.
Adjudicatory Hearing
The adjudicatory hearing is the trial portion of the case. It
must be held within thirty (30) days of the filing of the petition which
initiated the case. The issues are decided by the presiding judge, not a jury.
The burden of proof at the adjudicatory hearing is "by a preponderance of the
evidence," not the "beyond a reasonable doubt" standard associated with criminal
cases. At this hearing, the judge will determine if the child falls within the
purview of the Child Protective Act. If judge finds he/she then proceeds with
determining what should ultimately be done about the child's situation. This
will usually include either an order of protective supervision or an order
granting the Department legal custody of the child.
Protective Supervision v. Legal Custody In the Department
The judge may allow the child to remain in the custody of their
parent or guardian but provide that the Department of Health and Welfare will
maintain protective supervision of the child's well-being. Under this
arrangement, the Department takes various steps, including the providing of
necessary services, to ensure the safety of the child while in the home of their
parent or guardian. Alternatively, the judge may place the child in the legal
custody of the Department. The Department then must place the child with a
licensed foster care provider. Under this arrangement, the Department takes
various steps, including the providing of necessary services, in an attempt
reunify the child safely with the parents. If reunification can be safely
accomplished, the order of legal custody will usually be downgraded to an order
of protective supervision.
Concurrent Planning
The Department of Health and Welfare is required to engage in
what is termed "concurrent planning." This means that they must formulate a plan
to accomplish reunification while, at the same time, formulating a plan for
providing a permanent placement, e.g., adoption, if reunification cannot be
accomplished.
Planning Hearings
The Department is required to submit a written case plan within
sixty (60) days after removal of the child from the home or thirty (30) days
from the after the adjudicatory hearing, whichever occurs first. Within five
days of the filing of the case plan, the court is required to hold a hearing
with all of the parties to discuss the case plan and to issue an order setting
forth a plan for reunification of the family.
Review and Permanency Hearings
A review hearing is required to be held no later than six (6)
months after the court finds that the child comes under the purview of the CPA,
and every six (6) months thereafter so long as the child is in the custody of
the department.
A permanency hearing is required to be held to review the
permanency plan of the Department prior to twelve (12) months from the date the
child is removed from the home or the date the court found jurisdiction under
the CPA, whichever occurs first. At the permanency hearing, the judge court will
approve, reject or modify the Department's permanency plan. The permanency
hearing may be combined with a review hearing.
Reunification versus Termination of Parental Rights
The goal of the CPA is to accomplish reunification of the child
with their parents or guardians. However, in some cases this is either
inappropriate or impossible to accomplish. In such cases, the prosecutor's
office will file a petition to terminate the parental rights of the parent with
respect to the child. If termination is granted, the Department then takes the
steps for the child to be adopted.
Reasonable Efforts
The Federal Adoption and Safe Family Act and the CPA require
that government authorities establish that reasonable efforts have been taken to
prevent removal of the child from the home. This applies at all stages of the
proceeding from shelter care through termination of parental rights. These
efforts are not required when certain aggravating circumstances, such as sexual
abuse, exist.
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