The Hearing Process for CPS Investigations
The hearing process following CPS investigations can be long and complex. Here is everything you need to know about each and every step in the process.
The Detention Hearing
When the Emergency Response social worker does find a child to be in imminent danger in the home, the law permits CPS agencies and law enforcement to immediately remove children from the home and place them in protective custody for up to 72 hours. A petition alleging child abuse or neglect must be filed within two days of removal, and a detention hearing must be held no later than the end of the next court day after the petition is filed.
At the detention hearing, the court will determine whether the child should be released into the parent’s custody or remain detained pending a court hearing on the allegations in the petition. The child must be released unless the court finds the county has made a prima facie showing of risk of harm sufficient to justify the child’s continued detention. As the parent or guardian, you are entitled to present all relevant evidence and call any witnesses necessary to rebut the county’s case, and you have the right to cross-examine any witnesses against you.
While entitled to a court-appointed attorney, parents are strongly advised to retain independent counsel. Burdened with overwhelming caseloads, court-appointed attorneys have little time to spend on individual cases. Where the custody of your child is at stake, you need the effective representation of a well-prepared advocate thoroughly informed on the specifics of your case.
The Jurisdictional Hearing
Parents and guardians are entitled to a trial on all allegations of child abuse or neglect charged against them in the petition. Known as a jurisdictional hearing, parents can invoke the right to have this trial held within 15 court days of a detention hearing if the child is detained, or within 30 days of the date the petition was filed if the child remains in the home.
At the jurisdictional hearing, the court will make a factual finding as to whether the child has suffered abuse or neglect as alleged in the petition. If the court determines that the county has proven the truth of the allegations by a preponderance of the evidence, and that such allegations are legally sufficient to justify state intervention, the court will sustain the petition and declare jurisdiction over the child.
When supported by competent professional evidence, a court’s determination that a child’s injuries are of the sort that only occur as a result of a parent’s unreasonable or neglectful acts or omissions amounts to prima facie evidence that the child has suffered abuse or neglect. The burden then shifts onto the parents to present contrary evidence sufficient to overcome the presumption.
During the hearing, Attorney George H. Ramos, Jr. will aggressively advocate for the release of your child by presenting all relevant evidence necessary to rebut the county’s case and by conducting thorough cross-examinations of any witnesses against you. Every measure will be taken ensure that the petition is dismissed and that your child is returned to your custody.
The Dispositional Hearing
When a petition is sustained at the jurisdictional level, the next phase is a dispositional hearing. The hearing is usually conducted on the same day and immediately following the jurisdictional hearing, though it may be continued for up to 10 days if the child remains detained pending the hearing, and up to 30 days if the child remains in the home.
At the dispositional hearing, the court determines whether or not to declare the child a dependent. If the child is adjudicated a dependent, the court then addresses the issues of child placement and reunification services. The CPS worker will submit a case plan outlining the necessary actions a parent must take to resolve the problems that warranted CPS and court intervention. The case plan will include a list of services requiring the parent’s active participation, and it must be specifically tailored to the needs of a family in order to promote successful reunification.
Though jurisdiction has already been declared over your child, it is within the disposition court’s discretion to set aside jurisdictional findings. Therefore, the court may still dismiss the government’s petition or order informal CPS supervision without declaring dependency.
If the court asserts jurisdiction and declares your child a dependent, a ruling must then be made on whether your child may remain in the home while you engage in reunification services, or if outside placement is necessary until progress is made in accordance with the case plan. The court must return the child to the custody of the parent or guardian unless the county presents clear and convincing evidence that return will create a substantial risk of detriment to the safety, protection or physical or emotional well-being of the child.
When outside placement is ordered, the child must be released into the custody of a noncustodial parent, unless there is clear and convincing evidence that such placement would be detrimental to the child’s welfare. If released to the noncustodial parent is not an option, preferential considerations for placement are given to certain relatives’ requests, and a nonrelative extended family member will also be considered before placing the child into foster care.
During reunification, juvenile courts are required to conduct periodic reviews of the status of every dependent child placed in foster care and assess the progress parents have made in their case plans. These hearings are used to determine whether the child can be safely returned to the home, and in the alternative, whether reunification services should be continued or terminated for cases in which outside placement is still necessary.
The burden is on the county to prove that circumstances legally justify continued outside placement. However, the court may consider a parent’s failure to make substantive progress and regularly participate in a court-mandated treatment program as prima facie evidence that return would be detrimental to the child’s welfare.
The county must also establish, by clear and convincing evidence, that reasonable reunification services have been offered and provided. A finding that such services have not been offered and provided requires the court to continue the case for a subsequent review hearing.
Six-Month Review Hearing
Pursuant to the California Rules of Court and Welfare and Institutions Codes, the initial status review hearing must be held within six months of the date of the disposition hearing, but no later than twelve months from the date the child was placed in foster care, defined as the date of the jurisdictional hearing or the date 60 days after the initial removal, whichever is earlier.
After considering all admissible and relevant evidence, the court is required to release the child into the physical custody of a parent or legal guardian unless the court finds, by a preponderance of the evidence, that returning the child would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child.
If the court determines continued outside placement is necessary, it will either order reunification services be continued pending the next review hearing, or terminate reunification and set a hearing at which the court will select a permanent plan for adoption, guardianship, or long-term foster care.
Twelve-Month Permanency Review Hearing
A twelve-month review hearing, also known as a permanency hearing, will be conducted if the six-month hearing results in continued outside placement with reunification services. It must be held no later than twelve months after the date of foster care placement, defined as the date of the jurisdictional hearing or the date 60 days after initial removal, whichever comes first.
Again, the court is required to release the child into the parent’s custody unless a substantial risk of detriment to the child’s welfare requires continued outside placement. Detriment must be proven by a preponderance of the evidence.
A finding that continued outside placement is necessary will result in termination of reunification services and a hearing on a permanent plan for adoption, guardianship, or long-term foster care, unless the court finds there is a substantial probability that the child will be returned to the parent’s custody within six months or unless reasonable services have not been provided.
Eighteen-Month Permanency Review Hearing
An eighteen-month permanency review hearing must be conducted for any dependent child removed from the custody of a parent or legal guardian and not returned at the six or twelve-month review hearings. This hearing must be conducted no later than 18 months from the date of initial removal.
If the court does not return the child to the custody of the parent or legal guardian, the case may be continued for a subsequent permanency review hearing to be held within 24 months of the date of initial removal, but only if the case involves a parent or guardian who either is in a substance abuse treatment program or was recently discharged from institutionalization or incarceration. Otherwise, the court will set a hearing to determine a permanent plan for adoption, guardianship, or long-term foster care.
Selection & Implementation – The 366.26 Hearing
At a status review hearing, if the court does not return the child, and circumstances do not warrant continued reunification, the court is required to terminate reunification services and order a 366.26 hearing within 120 days. At this hearing, the court will select a permanent plan for the child. Adoption is the preferred plan, followed by legal guardianship and long-term foster care.
If the court selects adoption, the county must prove, by clear and convincing evidence, that the child is likely to become adopted. Upon finding evidence sufficient to support adoption, the court must terminate parental rights and order the child to be placed for adoption, unless the parent or guardian can show, by a preponderance of the evidence, that termination would be detrimental to the child or, in cases of relative guardianship, that removal would be detrimental to the child’s emotional well-being.
Post Permanency Planning Hearing
After a permanent plan is selected, a hearing will be held every six months to determine whether progress is being made to find the child a permanent home. These hearings will continue until your child is adopted, a permanent guardianship is established, the case is dismissed, or your child turns 18 years of age.
If you have been contacted by CPS, do not go it alone. Speak with bilingual attorney Ramos today.