Parents going through a Child In Need of Care Case often find themselves in a situation that is intimidating, complicated, confusing and overwhelming. The first step to a successful outcome is to secure an attorney familiar with this area of law. Next, work with that attorney and stay in communication so you fully understand your rights and responsibilities at every phase of the proceeding.
Parent’s Rights and Responsibilities
1. As a parent you, along with the other parent, have a constitutional right to custody of your child. The State or an outside party may only interfere with this right if you consent or if statutory reasons are met to interfere with this right. The role of the court is to balance your constitutional right with your child’s right to be healthy and safe.
2. You have a right to notice of all proceedings in the court case. In addition, if your child is in the custody of DCF (foster care) you have the right to advance notice of case planning conferences to discuss the steps necessary to have your child returned to your custody.
3. You have the right to have an attorney assist you with your case. If you cannot afford an attorney, the court will provide one.
4. You have a right to take part in forming the permanency plan with the foster care agency, your child and your child’s Guardian Ad Litem to outline the tasks which need to be met to have your child returned to your custody.
5. You have a right to participate in all court proceedings. Your attorney may present witnesses and evidence on your behalf and cross-examine the witnesses called by other parties or the State. Staying in communication with your attorney so she can be prepared to give you the best representation possible is essential to obtaining a successful outcome.
6. Under the statute, you have the right to a trained parent ally. If you want one, you must ask the court.
7. If you have a disability, the court must consider accommodations for your disability. You must inform your attorney and the foster care agency of your disability. Your disability cannot be a reason to keep your child from your custody unless the impact of your disability causes harm to your child.
8. You have the right to appeal certain decisions from the court to a higher court by working with your attorney to follow the proper court procedure for an appeal.
9. You have a responsibility to support your child financially while s/he is out of your custody.
The first phase of the case is the Petition being filed. If the State is proposing to remove your child from your custody, there will also be a probable cause hearing, also called a Temporary Custody Hearing. This hearing must be heard within 72 hours of your child being removed from your custody. You must be notified of this hearing. You can request an attorney represent you at this hearing. The burden is on the State at this hearing to show that there is probable cause to believe that the health or welfare of the child is at risk. It is essential that you meet with your attorney as soon as possible to prepare for this hearing.
If the State meets its burden at this hearing and your child is placed in foster care, there must be a case plan meeting within 30 days to outline all of the tasks necessary to reunify your family. This is called a reintegration plan. It is highly advisable that you and your attorney attend this case plan meeting.
The next court hearing is called the adjudication and must be held within 60 days of the temporary custody order. The State has the burden of proving at this hearing that your child is a Child In Need of Care as that term is defined by statute. The burden is higher than it was at the Temporary Custody hearing. You and your attorney have the right to present evidence, cross examine witnesses and put on your own defense of the allegations. If you do this and you are unsuccessful, you have the right to appeal the decision.
With the Adjudication, many court will also hold a Disposition hearing. At the disposition, the court will decide what to do for you and your child based on your child’s best interests. This hearing will set the goals for your family with input from the foster care agency based on the case plan meeting. The court will set the case plan, usually reintegration and a future court date to monitor the progress towards that plan (goal).
There are then review hearings, usually at 3-6 month intervals, depending on each family’s unique circumstances. At least once every 12 months, the Court must conduct a permanency hearing to determine the progress made toward the permanency goal and to determine if the permanency goal should change.
If there has not been sufficient progress towards the goal of reintegration or if other circumstances make it appropriate, the State can file a Motion to Terminate Parental Rights. There are statutory grounds which must be met to terminate parental rights. It is essential that you work your case plan tasks and work with your attorney very closely throughout the case to reduce the risk of this happening. If it does happen, you will again have the opportunity to have a trial and present witnesses and evidence, as well as cross examine witnesses and challenge evidence. The State has the burden to prove its case by clear and convincing evidence, which is the highest burden of proof in civil law. If you are unsuccessful at a trial on your parental rights, you can appeal. Your child cannot be adopted or placed under a Permanent Custodianship until the appeals court reviews your case for errors by the trial court.
The key in every phase of this process is to work closely with your attorney and the foster care agency to address any concerns that led to the Petition being filed so you can regain custody of your child.
Emily Hartz is an attorney licensed to practice in state and federal courts in Kansas. Ms. Hartz concentrates her practice in the areas of domestic relations, juvenile law and mediation. If you have questions about the Child in Need of Care process or your rights as a parent, contact Emily at 785-842-6311.
The information and materials on this blog are provided for general informational purposes only and are not intended to be legal advice. The law changes frequently and varies from jurisdiction to jurisdiction. Being general in nature, the information and materials provided may not apply to any specific factual and/or legal set of circumstances. No attorney-client relationship is formed nor should any such relationship be implied. Nothing on this blog is intended to substitute for the advice of an attorney, especially an attorney licensed in your jurisdiction. If you require legal advice, please consult with a competent attorney licensed to practice in your jurisdiction.