By Allie Phillips, Senior Attorney1

Welcome to Juvenile/Family Court! For those attorneys coming from criminal court, the rules and procedures are significantly different.2

You will need to learn an entirely new system of court procedures and protocols, as well as a new "court language." You will even learn that the rules of evidence play a much different role in this court. This article will help guide you through the uncertain and turbulent waters of your first weeks and months in family court.

Family Court 101

Guilty pleas, sentencing hearings, probation, jail, prison, and other familiar terms from criminal court do not enter the halls of family court. Parents do not plead guilty to abuse/neglect allegations, but rather admit to allegations; probation agents are replaced by caseworkers; sentencing hearings are replaced by dispositional hearings; pre-sentence reports are replaced by case service plans; and the equivalent to jail or prison is terminating parental rights to their child.

In criminal court, the goal of a prosecutor is to seek truth and protect society and victims from criminal wrongdoers. In family court, the goal is to provide assistance and services to help the family reunify. Parental rights are terminated if all reasonable efforts at reunification have failed.3 Working on civil abuse/neglect cases is crucial to the foundation of the criminal justice system. Children who are properly cared for should grow up into non-offending adults. Education and prevention in the family court can reduce the number of juvenile delinquent offenders, and in turn, adult criminal offenders.

Step One - When Child Protective Services (CPS) is notified of possible abuse or neglect of a child, an investigation is initiated.4 CPS looks into past allegations of abuse/neglect by the parent(s), determines if either parent's rights to prior children have been terminated, and attempts to "substantiate" (find sufficient evidence to support) the current abuse/neglect allegation. CPS, or the attorney/prosecutor for CPS, will then file a petition requesting the court's intervention. A law enforcement officer or CPS worker may remove the children from the home before filing a petition if there are reasonable grounds to believe the health, safety or welfare of the child would be endangered by remaining in the home. Once the petition is filed, an initial or preliminary hearing is held where the court decides whether the petition will continue through the court process or recommend an alternative response (i.e., provide services to the family without court oversight).

If the children were removed from the home before the petition was filed, the children's placement will also be reviewed at this preliminary hearing.5 Children will be placed with appropriate family members (also known as kinship foster care) or in foster care; they are returned home if the court denies the petition. The children are provided an attorney to represent their interests (a Guardian Ad Litem) and may even be provided a Court Appointed Special Advocate (CASA) worker; each parent is provided an attorney (if he or she cannot afford one); and the prosecutor or child protection attorney represents CPS.

Step Two - If the petition continues through the family court system, the caseworker assigned to oversee the children's placement assesses the family and prepares a detailed report (case service plan) for the court and all attorneys. The case service plan and subsequent updates are prepared during every step of the process to update the court, attorneys and parties on the welfare of the children and to outline the needs of the parents to help toward reunification with their children and cessation of court involvement. These reports are helpful for the pre-trial conference, where the caseworker sets forth a plan of services to aid the family toward reunification.

At this juncture, a parent may decide to admit to certain allegations or the entire petition to begin receiving the services that the court and CPS have offered. A plea helps move the case more quickly toward reunification. If a parent admits to allegations in the petition, services are offered and ordered by the court.7 These services can include in-home parenting support, parenting classes, anger management counseling, drug/alcohol screening and treatment, educational assistance for the children, individual or family counseling, and employment assistance. Parents generally have more success with services after admitting to some allegations. Parents who refuse to admit to allegations have a more difficult time complying with services that are "forced upon them' " Failure to comply with services ordered by the court can result in CPS petitioning to terminate parental rights.

**NOTE: If parental rights have been terminated to a prior child, the current petition will likely contain an immediate request to terminate parental rights in relation to the current child.8 Services are generally not offered to the parent, and parenting time is suspended.9 The case simply proceeds through an expedited court process and is set for a termination trial.

Step Three - After the pre-trial conference, the case can take two different paths through the family court system. If a parent admits to allegations in the Petition, the case proceeds to court-ordered services, dispositional hearings (to review the progress of the parents and the welfare of the children), and then to permanency planning (See Step Five). On the other hand, if a parent does not admit to allegations, the case is set for a temporary wardship/custody trial where evidence is presented to support the allegations in the petition. The burden of proof is generally a preponderance of the evidence," and the states differ as to applicability of the rules of evidence (primarily regarding hearsay) at this trial. The court then decides whether to "take jurisdiction over the children." If the court takes jurisdiction, the court orders services upon the parents. Few cases proceed to a temporary wardship/custody trial, primarily because most parents want to receive services to improve their situation and be reunited with their children.

Step Four - After the court takes jurisdiction, the parents (and live-in partners) will participate in court-ordered services. Periodic hearings11 are held with the court, all attorneys, all parties, and the caseworkers, to review the case service plan and progress of the services. The court decides whether to maintain the services in place, add or delete services, or impose stricter guidelines to motivate parents toward reunification. These periodic dispositional review hearings typically occur every few months, and the rules of evidence as to hearsay generally do not apply. A caseworker can petition the court for an emergency hearing to review placement of the child at any time during this process (e.g., where a parent who has custody of the children tests positive for drugs or alcohol, drops out of counseling, is arrested, or is in a situation that endangers the health, safety or welfare of the child).

Step Five - After the parents have exhausted the time period to engage in services (usually between 12-15 months), a permanency planning hearing is held.12 Here, the court reviews the initial allegations of abuse/neglect, parents' admission to allegations or testimony from the temporary wardship/custody trial, the case service plans, and whether all parties have substantially complied13 with the court's orders. The court then decides whether the children should be returned home, whether to cease court intervention due to successful reunification, or whether CPS or its attorney should file a petition to terminate parental rights. The purpose of holding a permanency planning hearing within a short time period is to limit the time a child is separated from the parents. The goal is to give permanency to the children and to provide the parents with sufficient, but not lengthy, time to show they are ready to be good parents.

Step Six - If the court grants a petition to terminate parental rights, a trial is then scheduled. Generally, the children are not in the home at this time and services to the parent end when this petition is filed. Parents generally have two options at this juncture. One option is to voluntarily consent to release their parental rights, thereby allowing the child to be placed for adoption. The second option is to proceed to a termination trial. Depending on the court's procedures, the rules of evidence may be modified.14 The court considers admissions made by the parent(s) to the initial petition, all prior case service plans (and the statements and evidence contained in those plans), efforts made by CPS and the parents toward reunification, efforts made by parents toward substantial compliance with court-ordered services, and whether terminating parental rights is in the best interests of the child.The burden of proof is clear and convincing evidence. If the Court terminates parental rights, the child is then considered and placed for adoption. At this juncture, the attorney/prosecutor's involvement in the case ends. In voluntary and involuntary release of parental rights stemming from court involvement, parents are generally not permitted to have further contact with the child,15 to know who the adoptive family will be, or to receive updates on the child's progress with the adoptive family.16

Conclusion

Adjusting to the new terminology, significantly different court procedures, and modified rules of evidence can be intimidating for any attorney. APRI's National Child Protection Training Center is ready and able to help all attorneys handling child protection cases.

1 Allie Phillips is a Senior Attorney with the American Prosecutors Research Institute in Alexandria,VA, working with the National Center for Prosecution of Child Abuse and the National Child Protection Training Center.
2 Due to differing laws and procedures, please consult the rules and procedures in your state.
3 Reasonable efforts at reunification are not attempted or considered in cases where Child Protective Services files an initial petition that seeks to terminate parental rights. See Note under Step Two.
4 When allegations of abuse/neglect are initially less serious in nature (i.e., not involving criminal conduct, sexual abuse, or serious abuse/neglect), many states are moving toward "alternative response" approaches rather than formally filing a juvenile/family court petition. Victor Vieth, Unto the Third Generation: A Call to End Child Abuse in the United States Within 120 Years, JOURNAL OF AGGRESSION, MALTREATMENT & TRAUMA (forthcoming 2004), citing NATIONAL STUDY OF CHILD PROTECTIVE SERVICES SYSTEMS AND REFORM EFFORTS (U.S. Department of Health and Human Services, Washington, D.C., U.S. Government Printing Office, 2003) at 5-1.
5 If allegations apply to one child in a household, some states permit CPS to remove all the children to protect them from abuse/neglect. For instance, if only one sibling alleges sexual abuse by a parent, CPS and the court may remove all the children to prevent the alleged abuser from having access to them. See e.g., In re Dittrick lnfant, 80 Mich App 219 (1977); In the Matter of LaFlure, 48 Mich App 377 (1973); West Virginia Code Section 49-6-3(a).
6 Court Appointed Special Advocates (CASA) are volunteers who provide an additional voice to children during the family court process. CASA workers provide additional help to the Guardian Ad Litem to ensure that children are appropriately protected.
7 The court can also order services upon individuals residing in the home with the children.
8 See e.g., Michigan Compiled Laws 712A.19b (3)(i).
9 See e.g., Michigan Compiled Laws 712A.19b (4).
10 See e.g., Michigan Court Rule 5.972(C)(1). However, some states require proof by clear and convincing evidence at this stage (see e.g., Gen. Stat. N.C. Sec. 7B-805 and Ohio Revised Code Section 2151.35).
11 Also known as dispositional hearings, dispositions, dispositional review hearings, and permanency planning hearings.
12 The federal Adoption and Safe Families Act of 1997 (Public Law 105-89, 111 Stat. 2115) requires states to move to terminate parental rights for those children who have been in foster care for 15 of the previous 22 months.
13 "Substantial compliance" is a subjective term for the court, but it generally means that parents need not have 100 percent compliance in all court-ordered services. If a parent succeeds with primary issues (such as alcohol treatment and counseling), but is not as successful with other minor issues (such as missing several family counseling sessions), the court may still determine that the parent "substantially complied" with the Court's orders.
14 For example, many states allow some hearsay to be admitted at the termination trial, such as statements from children describing abuse or neglect, medical/psychological reports from physicians, or deposition transcripts. See Michigan Court Rule 5.974(F) (2), Ohio Revised Code Sec. 2151.31 (F), Idaho Code Sec. 16-2009.
15 However, in some states, some courts may allow the parent to have a post-release visit with the child to say goodbye as long as CPS approves. For instance, in Michigan, a post-release visit is not statutorily mandated, but is allowed in situations to help aid in the healing and closure process for both parent and child.
16 See e.g., Michigan Compiled Laws Section 710.68; West Virginia Code Section 48-22-702(b).

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