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Dependency Cases Continued

Dependency law as written in the Welfare and Institutions (W&I) Code requires, in most cases, that CPS give parents an opportunity to correct their abusive or neglectful behaviors, and have their children eventually returned to them. This is done by providing the parents with “services” such as frequent visitation (usually supervised at first), substance abuse treatment, parenting classes, anger management classes, individual and family therapy, etc. In indigent cases, these services are provided for free, and often prove to be a boon for troubled families. Parents must, however, actively participate in their services and show that they’re working hard to reunify with their children.

When children are first removed from parents by CPS, the agency must file a petition with the court within two “court days,” and an initial hearing must be scheduled to determine if the children should remain out of the parents’ care. This initial hearing is called a “detention hearing,” where the court either approves or disapproves of the actions of CPS. The detention hearing must occur no later than the end of the next court day after the petition is filed. In the vast majority of cases, the court approves the detention of the children, and makes temporary orders, because the detention hearing has a very low standard of proof called “prima facie” evidence. The term prima facie is Latin for “on the face of it” referring to the information contained in the petition filed by CPS. The court is authorized by law to use this low standard of proof, because the judge must err on the side of protecting children in an emergency. The temporary orders, however, may be challenged at a later hearing. Using prima facie evidence, the judge must consider that everything written in the petition and attached report is true. Assuming the truth of what is stated, the judge then must decide if it constitutes enough evidence to approve CPS continuing to detain the children. As one might imagine, it is quite easy for a social worker to draft a petition in a way that nearly always guarantees the court will approve the detention. However, this is only the beginning, and there are two more hearings with higher standards of proof which occur within approximately a month to six weeks. These next hearings are called the jurisdiction hearing, followed by the disposition hearing. At these hearings the parents and their counsel are allowed to present their own evidence if they continue to dispute the need for the court and CPS to be in their lives at all, or the need for the children to remain in foster care. Immediately after detention, in most cases, CPS begins providing some services, the most important of which is visitation with the children, usually supervised.

The next hearing, which is typically scheduled within two to three weeks is the jurisdiction hearing. At this hearing, the court decides whether to take the case, on more than just a temporary basis. The only issue before the court at this hearing is whether or not the court should keep the case and, with CPS, continue to be involved in the family’s life. The evidence used is the circumstances that existed at the time the children were detained. The standard of proof required is “proof by a preponderance of the evidence.” This means that CPS must prove that it is more likely than not that the abuse or neglect actually occurred. In terms of percentages, this means proving that odds are at least slightly more than 50/50 that the abuse/neglect happened.

If the court takes jurisdiction over the case, it sets the disposition hearing two to three weeks out. The purpose of this hearing is to determine what is the best “case plan,” consisting of various services, to correct the family’s problems which led to CPS intervention, and which services will most likely accomplish the safe return of the children to their parents. Such a case plan is called “Family Reunification” (FR). In FR cases, CPS provides reunification services, but there are time limits. The parents have 12 to 18 months to follow through and complete their services and have their children returned, or their children may never be returned to them. When children are three years of age or younger, the parents only have 6 to12 months to complete their services and have their children returned. In both situations, at the 6 month review hearing when children are three years or younger, or at the 12 month review hearing when children are older than three years, if the parents are making substantial progress but are not quite ready to have their children returned, the court will grant six more months of services.

If the parents fail to complete their services within the time limits, CPS will recommend to the court that the parents’ services be terminated, and a hearing be set in 120 days to determine what kind of “permanent plan” should be ordered to provide the children with long-term stability. The law favors adoption by another family as the kind of permanent plan that is in children’s best interests because it represents true finality and long-term stability. If the children are found to be “adoptable,” that is, that they are likely to be adopted, then at the next hearing (called the “366.26 hearing,” or simply the “.26 hearing” after the W&I code section number), the parents’ parental rights will be terminated so the children may be adopted. However, not all children are adoptable because they may be older, including being old enough to express a preference to not be adopted by another family, and/or may have so many deep-seated physical or psychological problems, that it is highly unlikely another family can be found who is willing to adopt. In those cases, there may be different permanent plans ordered that do not require the termination of the parents’ parental rights, such as a guardianship, including a guardianship with relatives, or long-term foster care, or, unfortunately, in the most severe cases, where children suffer from difficult, violent or suicidal behaviors, placing them in group homes. In some respects, both adoption and group homes are the worst case scenarios possible. However, where a parent has really tried, but still failed, and continues to have a beneficial relationship with his or her children, the adoptive family may be willing to allow continued contact, with the blessing of CPS and State Adoptions, even after parental rights are terminated.

To make the determination of what is the best case plan and prepare for the disposition hearing, the social worker schedules lengthy interviews with the parents (usually separately), to gather information regarding their family backgrounds, how they were raised, whether the parents, themselves, may have been abused as children, their education levels, their work histories, their criminal histories, if any, their histories of drug or alcohol abuse, the nature of their own relationship with each other and with their children, etc. The standard of proof for disposition is “clear and convincing evidence.” This is the highest standard used (except in cases where children have Native American heritage and are members of a tribe or eligible to be members of a tribe, and the tribe intervenes in the case; in those cases CPS must use “proof beyond a reasonable doubt” just like in criminal cases). In terms of percentages, proof by clear and convincing evidence could be considered somewhere in the 70% range. As stated above, typically, disposition hearings, if contested, are about the nature and kind of services needed. The type of evidence consists of what is happening now, and what is likely to happen in the future based upon what the parents have done on their own and/or with CPS help to begin to correct the problems, and the prognosis for continued progress towards reunification. This is why, if detention is taken by the court in the beginning of the case, it is very important for parents to work very hard on their own and/or with CPS assistance to either correct any problems that exist, or to show CPS that it has overestimated the danger parents may have posed towards their own children when they were put into foster care or relative care.

In some cases, if the parents have worked diligently, by the time of the disposition hearing the children may be returned to them. In most situations where this happens the children are returned to the parents, but the court and CPS keeps the case going, and orders a case plan called “Family Maintenance” (FM). This is also what usually occurs at the end of a successful FR case, the case is kept open for another three to six months. In FM cases the parents still do not have true custody, but the children are “placed” with one or both parents, who still must participate in court-ordered services. The court keeps official custody of the children, and the social worker checks in with the parents and kids at least once per month, with the occasional unannounced visit, to keep track of how things are going. The social worker also checks in with the agencies or therapists providing services to gauge the parents’ progress. In both FM and FR cases, there are periodic court reviews every six months, for which the social worker prepares a written report. There may also be interim “oral reviews” scheduled, typically after three months, where the social worker is sworn as a witness and testifies as to the parents’ and children’s progress. There may also be more frequent oral reviews, even on a monthly basis, if the parents are engaged in drug or alcohol treatment, in order to encourage their progress, and remind them of the limited time-lines to achieve the return of their children.

In more mild cases, CPS may not detain the children, but allow them to continue to live with the parents, yet still file a petition with the court. These cases are called “in-home” cases, and start off as FM cases. These cases typically require that the problems to be addressed are not so severe that the children must be removed from their parents’ care, but there is a situation that still must be monitored for a time. Such cases also require that the parents are cooperative with CPS and show insight regarding the problems. A common example of such a case may involve inappropriate behavior between siblings, such as incest.

The law requires in all cases except the most severe, that CPS make reasonable efforts to get the parents to cooperate voluntarily with services or suggestions to correct problems, where appropriate, to avoid having to involve the court at all. Such cases, when successful, are described as being “evaluated out” and the parents are given information as to where they can go to get the help they need from local agencies. When CPS attempts to evaluate out cases, but does not see the parents cooperating or gaining insight, they may then file a petition with the court.

Another scenario often seen is children detained from both parents because a separated, “non-offending” parent with knowledge of abuse or neglect by the other parent did not take steps to protect his or her children. Such a situation can turn an ordinary family law custody case into a dependency case. It is very important to put your children’s welfare ahead of your spouse or ex-spouse, and take steps using the family court, including restraining orders, if necessary, to protect your children, or they may still be taken away from you even if you are not the abusive or neglectful parent. If you truly, reasonably suspect your children are being abused or neglected by the other parent, there is no harm in making a report to CPS. The identity of reporting parties is kept confidential, and, if CPS takes no action, you may still be advised by the social worker to go to family court to try to obtain orders for sole custody for yourself and supervised visitation for the other parent. In some counties, CPS may provide you with a letter containing such advice to show to the family court judge.

In rare cases, when children are detained from parents, CPS may recommend that no reunification services be offered and that the case be immediately set for a .26 hearing in 120 days to terminate parental rights and adopt, or to have some other permanent plan ordered. These are called a “bypass” cases. There is a limited list of situations in the W&I Code where this is allowed to occur. They include severe physical injury to a young child either caused by one or both parents, or caused by someone known to a parent whom he or she should have reasonably known would so injure the child (involving broken bones or other injuries severe enough to be life-threatening); a lengthy history of extreme drug or alcohol abuse by the parents, and no attempt or multiple failed attempts at rehabilitation; parents who have had another child previously detained and adopted out because the parents failed at their services; a parent with a lengthy, serious and violent criminal history; a parent who engaged in severe sexual abuse of a child; or a parent who has such severe psychological or psychiatric illness that they would not benefit from services (this requires that two forensic psychologists or psychiatrists evaluate the parent and agree that he or she would not benefit from services).

In dependency cases where the parents acknowledge that problems exist, and desire the assistance available from CPS and the court to correct their problems, they may agree to the recommendations of CPS, without admitting fault, in a sense. Similar to a criminal plea bargain, but without the potential consequence of probation or incarceration, and without a black mark on their public record (dependency cases are confidential, and may not be seen by or shared with the public), parents may decide to “submit” to the recommendations of CPS, even if they disagree with some of the facts alleged in the petition. Sometimes, to avoid having a trial or contest, the social worker will agree to make corrections to factual errors in the petition, after further investigation reveals those errors, when he or she drafts the jurisdiction report or disposition report. Sometimes, as well, differences of opinion between the parents and CPS regarding the terms of their case plans can be mediated with the assistance of Family Court Services mediators, who also help parents in ordinary custody cases, in order to avoid a trial or contest.

In dependency cases where the allegations stem from conduct that has also resulted in the filing or potential filing of criminal charges against one or both parents, it may be advisable to avoid communication with social worker regarding the allegations because of the potential for making incriminating statements. Although these cases are confidential from the public, the current state of the law allows for the free-flowing exchange of information between law enforcement and CPS social workers while both are investigating their respective cases. This should not prohibit the parents from providing ordinary information about their children that has nothing to do with the allegations but is necessary for CPS to know how best to provide care for the children. In such situations, the parents should also remain open to receiving information regarding how their children are faring in foster care. In any case where criminal charges may be pending, it is highly advisable to seek the advice of one’s attorneys before speaking with the social worker.

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