Tuesday, July 2, 2013

The Life of a DCPP Case, Part Five - Review and Permanecy Hearings

Review and Permanency Hearings

By now you have seen that the court has two functions in a DCPP case.  The first function is to determine if a parent has abused or neglected the child.  The court cannot continue to hear the case under Title 9 if it determines that there was no basis for the finding against at least one parent.   The court can establish abuse or neglect either because the parent has stipulated to one of the allegations in the complaint, or following a trial.   Once the Court enters a fact-finding Order, the court has completed that first function.  The court can continue to hear the case under Title 30 if the Judge has found that it is necessary to continue services for your family.   Title 30 jurisdiction last six months and the Division must request that the case remain open every six months if it does not want the case to be dismissed.

The court begins to exercise its second function at the dispositional hearing, which I discussed in the previous post.  At that point, the court will have determined if your child can come home now.  The court will also have determined which services are necessary for the parent to complete in order to safely parent the child at home, or to allow a reunification when the case is over.  In order to properly monitor your family's progress, the court will schedule review hearings and at least one permanency hearing.

Review Hearings

At this point in your case, you will need to change your focus from the facts of the removal and redouble your efforts to get your child back.  You need to communicate with your case worker and CASA regularly and visit your child as often as allowed.  The court will schedule review hearings at least every three months.   Each time a hearing is scheduled, the Division, and often the CASA worker, will issue reports to the court documenting both the progress that you have made and any problems that still need to be addressed.  The Division will also document your compliance or failure to comply with court-ordered services.  

Your lawyer will receive these reports within a week of your court date.  It is very important that you maintain communication with your lawyer at this point in your case.  Your lawyer only gets these reports right before the review date and does not want to be learning about problems for the first time, or find out that you are not complying.   Any lawyer who handles these cases will understand when clients have setbacks and will not be upset with you or judge you for that.  However, speaking for myself, I do get upset when clients do not maintain communication.  Your lawyer cannot help you with problems he or she does not know about.  You need to give your lawyer any progress reports from service providers so that he or she can send them to the Judge and all attorneys before the review hearing.

During this period, your lawyer may determine that you should be evaluated by a defense expert, usually a psychologist.   Typically your lawyer will request two types of evaluations, a psychological evaluation, and a bonding evaluation.    A psychological evaluation seeks to determine if the parent has  any mental health issues that could impede successful parenting, or that would be a reason for the court not to allow your child to return home.  A bonding evaluation enables the psychologist  to observe your interaction with your child, to determine if there is a healthy and positive relationship.  If you have a public defender from OPR, he or she can also ask an investigator to check out the conditions of your home, if that becomes an issue in the case. 

Your lawyer will determine at which time in the case to schedule the evaluations.  He or she does not want to use the expert's time and effort unless and until you are participating in services that can help you.   It is important for your lawyer to be able to present reports that will show you in a positive light, so that the court does not only rely on the information in the Division's reports. 

If the judge has determined that you have made significant progress, you may be reunited with your child before the case is over.  However, that does not mean your case will necessarily be dismissed right away.  The judge will probably want to monitor your progress for at least a few months to ensure your situation is stable in the home. There is no limit to the amount of time the court can keep a case open once a child returns home.  But if your child comes home and you comply with court orders, the edge will eventually dismiss your case.  Hopefully you will find yourself in that situation, and you won't need to read any further in this blog!

Permanency Hearings

If your child is still out of the home and almost a year has passed by, your situation will become more serious.  There is a Federal Law called the Adoption and Safe Families Act  (ASFA).  You can check out the full text here, if you want to but you probably would rather click here for a summary of the law. 

ASFA, as a federal law, applies in all 50 states and  is a well-intentioned law that Congress passed because they did not want children to spend years in foster care while the court decides if reunification is possible.    This law is not bad for children in that sense.  However, in passing this law, Congress created an arbitrary deadline.   ASFA requires the Division to present a permanent plan for a child within one year from the date of removal.   If  the one-year anniversary of your child's removal is approaching, and your child is still in placement, the court must hold a permanency hearing.  Although the Division will present its plan to the Judge at that hearing, the Judge has the final say and can either accept or reject the Division's plan.  If the Judge rejects the Division's plan he or she will not substitute one of his/her own but will order the Division to present a new one in thirty days.

There are five possible outcomes to a permanency hearing:
  • Reunification.  The court decides your child can come home with you now or in the immediate future.

  • Three-Month Extension.   If your lawyer thinks that  you have made significant progress, but that there is more that you need to do before your child can return home, he or she can ask the judge for a one-time three-month extension of the Permanency deadline.   Although I am always happy to ask for these extensions, I would prefer that the Judge approve reunification than grant the extension.  Just because a Judge grants an extension does not necessarily mean he or she will approve a reunification plan next time.

  • Custody to Other Parent or Relative.  If the Court reunites a child with one parent, the Division usually will not seek to terminate the parental rights of the other one.   If the Judge determines that a case can be dismissed, but wants to award primary custody to the parent who did not have it before the DCPP case began, the Court will schedule a best interest hearing, called a "G.M." hearing (after the case that ruled that such a hearing is required).    Any lawyer who handles your DCPP case will be able to represent you for that hearing.

  • Kinship Legal Guardianship.   This is an arrangement in which your child's current caretaker, usually a relative or family friend, agree to care for your child in the long-term and assume all responsibility for the child.  However, in this arrangement, the birth parent retains parental rights including parenting time.  (This arrangement is a good outcome in some cases where reunification is not feasible.  Your lawyer can advocate for this outcome but it is difficult to achieve unless the Division agrees with it.  This is because the Division sees Termination of Parental Rights followed by adoption as a more permanent arrangement.   I could spend a lot of time on this issue but it will have to wait for a future post.

  • Termination of Parental Rights (TPR).   If the Division determines that  any of the other possible outcomes are not feasible, their DAG will ask the court to approve a plan of Termination of Parental Rights (TPR) (also known as "Guardianship").   This is not the outcome you want or you hoped for, but it is not the final outcome of your case.    The Judge can order a plan of TPR at this point, but that Order does not terminate your rights.  The Judge will Order the Division to file a new Complaint for TPR within the next 45 days.    If the Judge approves a TPR plan, he or she will keep your current case open until the Division files the complaint and serves the parents.   When it is ready to file the Complaint, the Division will file and serve you with new Order to Show Cause which will set a court date for you to appear.  At that point, the Judge will dismiss the previous litigation.\ 

If you were represented by a Public Defender from OPR, your representation will conclude when the judge dismisses your abuse/neglect case.  Your Public Defender will ask you to reapply for the services of OPR so he or she can continue to represent you if you are approved.  If you were represented by a private attorney you will probably need to enter into a new fee agreement in order for him or her to continue to represent you.

Hopefully for you "The Life of A DCPP Case" does not go any further.   You want to get your child back before the case gets to that point where the Court has approved TPR as a permanency plan.   That is why I said earlier that your primary focus has to be on reunification beginning the day after your child is removed and on the 364 days after that.  The Division will always assume that reunification is the best plan, but you only have one year to prove it to DCPP - and the Judge.  If you don't achieve it, the DCPP will recommend TPR.  They will still offer you the same services, and say that they are "concurrently planning" for reunification.  But don't be fooled - the Division's focus is solely on TPR after this point.  You may still be able to get your child back before a trial - I've seen it happen.  But after this point it is much harder.  TPR Trials are hard to win.  The only way to guarantee that you will win it is to make sure it doesn't happen.

If you are facing a TPR trial, please keep following this blog.   As "The Life of A DCPP Case" continues, I'll discuss TPR trials in detail.  I'll explain how your lawyer will prepare  for trial and how you can assist him or her as he prepares your defense.  I'll also discuss the stresses that parents face when the trial is looming, and the difficult decisions and choices that parents have to make as trial approaches.

Next: Termination of Parental Rights: Preparing for Trial

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