Child Protective Act Proceedings
Idaho’s Child Protective Act is directed at the protection of children from abuse, neglect and abandonment. The county prosecuting attorney is authorized to file civil suits to address the treatment of children.
COURT & ADMINISTRATIVE PROCEDURES
The pre-filing procedures for cases under the Child Protective Act are found in the Act itself. The court procedures for handling cases once they have been filed with the court are set out in the Act and in the Supreme Court’s Idaho Juvenile Rules.
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.
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.
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.
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.
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.
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.
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.
The prosecutor’s office works in conjunction with the following agencies in the discharge of their responsibilities:
Idaho Department of Health and Welfare
Division of Children and Family Services
Guardian ad Litem (CASA) 208-232-2272
Idaho requires each county to have a multidisciplinary team. Bannock County’s multidisciplinary team predates this legal requirement.
Visit http://legislature.idaho.gov/idstat/Title16/T16CH16.htm to view links to Idaho Code Title 16, Chapter 16, which is known as the Child Protective Act. Click any of the links to read the text of the statute.