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Getting a Child out of a Shelter
1. What happens if the parent is arrested while away from the child?
If a parent is arrested and taken to jail, it is critical that the parent contact someone to care for his or her child. If the child is in school or day care, the teacher or administrator may be able to contact you or family members. If the arrested parent cannot contact family or friends in time, chances are the child will be placed in an emergency shelter by the county Child Protective Services Agency. You, as concerned family member(s) or friend(s), should be persistent in locating and retrieving the child.
If you know that the child has been placed in an emergency shelter, you should contact the county Department of Social Services within 72 hours of the time the child is picked up. By law, the child may be released to a relative if that relative has proof that he or she is related to the child. To prove that you are related to the child, you should bring important papers relating to the child or a signed statement by the parent and the child's birth certificate when you go to the shelter. This is particularly important if your last name is different from the child's last name.
If no relative comes to pick up the children or if the Department of Social Services (DSS) will not allow the person to take the children with them, DSS is required to file a "petition for dependency" with the juvenile court within 48 hours of the time the children were picked up. This petition must state the reasons why the children should be protected and made "dependents" of the juvenile court. A detention hearing must be set for the third day after the children are picked up.
The detention hearing is the first judicial proceeding in a dependency case. At this hearing, the court decides whether the child should remain in custody, away from the parent, while an investigation into the reasons for removal is conducted. The judge can take witnesses at this time if the court believes it is appropriate. The court may decide to dismiss the case and return the child to the parents, refer it for informal supervision (during which the Department of Social Services monitors the risk to the child while the child remains at home), or detain the child and proceed with the case. The parent should be at the detention hearing because of the serious nature of the proceeding. If the parent is unable to be present, a responsible relative may attend the hearing on the parent's behalf. If the juvenile court judge is satisfied that the relative who attends the hearing will able to provide appropriate care for the child or children, that judge has the authority to then release the child to that relative's care and to dismiss the dependency petition.
The judge may decide instead to set up a jurisdictional hearing within 15 working days of the time the child is picked up. The judge may make this decision if he or she believes that the relative would not be able to provide a safe, responsible home for the child. The judge may either (1) allow the child to be released to the relative, or (2) place the child in temporary foster care until the jurisdictional hearing.
The next stage in a dependency case, the jurisdictional hearing, deals with the validity of the allegations against the parents contained in the petition filed by the Department of Social Services. At the jurisdictional hearing, the juvenile court judge reviews the dependency petition filed by DSS and decides whether or not to make the child a dependent of the court. In order to "sustain" or grant the petition, the judge must find that the "allegations" or claims made by DSS in the petition are true. The parent has a right to be represented by an attorney at this hearing, and in most counties the judge will appoint an attorney from the Juvenile Public Defender's Office or an attorney on a court appointment list, if the parent has no money, to represent the parent. The child also has the right to be represented by an attorney.
The parent should be at this hearing, or, at the very least, talk with the attorney before the hearing to make sure that the lawyer understands his or her concerns and wishes for the child's welfare. It is also critical that you, as the caregiver, attend the hearing, talk with the parent's lawyer, and talk with the Department of Social Services social worker on the case.
The parent has the right to present witnesses and other evidence at this hearing to show that the child does not need the protection of the court. The parent may wish to show the court that the child is either safe with him or her, or that a relative should care for the child if the parent is incarcerated or in a treatment program. The parent may also show that a friend should care for the child if there are no relatives to care for him or her. If the caregiver is not related to the child, the juvenile court is likely to require him or her to apply for a foster-care license. The child cannot be placed with a non-licensed non-relative, unless a guardianship petition is granted.
It is important that the lawyer object to any false statements made in the dependency petition before the petition is "sustained" or granted. Once granted, the child becomes a dependent of the court. The parent does not lose all parental rights when the child is made a dependent. When the petition is granted, however, all the claims made by DSS (even though they may be false) can be used as evidence against the parent in future court proceedings that may attempt to terminate his or her parental rights. As a concerned grandparent or relative, you should be aware that your right to have a relationship with this child may be affected by the juvenile court's decision to limit or terminate the parents' custodial rights.
If the judge grants the petition and makes the child a dependent of the court, a dispositional hearing is supposed to be held within ten working days, or may be combined with the jurisdictional hearing, but sometimes it may be not be held for another 60 days. At disposition, the court considers what it should do to protect and help the child and his or her family. The county Department of Social Services will file a "court report" recommending a plan for the child. If placement of the child is recommended with someone other than the child's parent, guardian, or custodian, the Department of Social Services is required to document that reasonable efforts have been made to prevent the need for the child's removal from home. The law requires that the case plan describe reunification services to help the child return home.
The parent and his or her lawyer have a right to review the DSS report to the court and object to any part of the report. Again, the parent should make sure that the lawyer objects to any false statements in the report, since the report will be accepted as fact if it is admitted into evidence by the court.
The parent has a right to request that the court specifically order phone calls and visitation with the child on a regular basis.
At the dispositional hearing, the parent has a right to request that the child be placed in the parent's home county or (when appropriate) the county where he or she is incarcerated. Under federal law, the child must be placed as close to home as fits the child's needs. California state law requires that the child be placed in the parent's home county unless there is no "suitable" foster home available in that county. However, if the parent is incarcerated, it may be better to have the child stay with friends or relatives near the prison so they can bring the child for regular visits. Whatever the decision, the parents, friends, and family must be sure that the lawyer raises this issue with the judge at the dispositional hearing.
It is almost always better for the child, the parent, and the family, if the child is in the care of a responsible relative while the parent is incarcerated or in a treatment program.
California state law makes it clear that parents and children are entitled to "family reunification services" even if the parent is incarcerated. At a minimum, the parent has the right to arrange regular phone contact with the child and, if possible, regular visitation.
The lawyer must request that the juvenile court order visitation and phone calls at the time of the dispositional hearing. The lawyer can also request funding to reimburse the foster parents (who may be relatives) for collect calls and transportation costs. If these items are not in the court order, the foster parents are not required to do this for free, although it may be very beneficial for the child if the caregiver can arrange for the child to talk with his or her parent regularly.
The parent should call or write both the child and the caregiver on a regular basis. The parent should also stay in contact with the social worker and request reports on the child's progress. As the caregiver, you may want to send pictures, copies of school reports, and medical records to the parent. You may want to encourage the parent to send cards, handmade items, art, or other items the child would enjoy.
Remember: Always keep an account of all legal documents, correspondence, appropriate bills, and contact with the lawyer, social worker, and the court. If you keep a careful record of your efforts, you will be better prepared for the periodic review hearings concerning the child.
A periodic review hearing, also called a dependency status review (DSR) hearing, must be held every six months by the juvenile court that made the child a court dependent. At this hearing, the judge reviews the child's case and the case plan which has been set up by DSS for you, the child, and the parent. A typical case plan might recommend that the parent participate in counseling, parenting classes, or other programs. It is extremely important that the parent follow the terms of the case plan exactly to ensure the child's return. It is also important that you, as the relative-caregiver, follow the plan that the court has ordered.
Whenever possible, you should be present at every court hearing concerning the custody of the child you are caring for.
Since you know that the review hearing will happen approximately six months after the child has been made a dependent, you should let the judge, lawyer, and social worker know that you want to be present at the hearing. If you have specific concerns about the child's placement, they should be voiced at this time.
The relative-caretaker (legal guardian or foster parent) and the parent are entitled by law to receive notification of each hearing well in advance of the court date. Many times notification is not sent within the time required (incarcerated parents may receive notices a few days before, or even after, the hearing date). Ask the attorney and the social worker to let both you and the parent know of any changes in the court date. Be sure to let the social worker know if you have a change of address or phone number.
At the review hearing, the parent and his or her lawyer should make sure that the judge knows of the parent's efforts to stay in contact with the child, to meet the requirements of the case plan, and to make plans to reunify with the child after the parent's return. In addition, the parent and his or her lawyer can raise any problems or concerns that they have about the DSS social worker, the child's placement, or the case plan. You can also let the court know how the child is doing and request that you receive additional services for the child, if necessary.
Under California Penal Code §2625, incarcerated parents have the right to be present at all court hearings involving the termination of parental rights or juvenile court dependency proceedings in which the child may be made a dependent of the court. No proceeding may be adjudicated without the parents' presence or a knowing waiver by the parent. However, this right does not necessarily apply to federal prisoners. The Court in In re Maria S., 60 Cal. App. 4th 1309, 71 Cal. Rptr. 2d 30 (1997), held that a dependency proceeding could continue even though the father was being held in a federal prison for deportation and was not allowed to attend. Nor does the right extend to prisoners sentenced to death. These prisoners may not be removed for a hearing even if their sentence is being appealed. Penal Code § 2625(g) Moreover, a recent case, denied an incarcerated father a right to be present at a hearing stating that "Penal Code § 2625 did not grant father an absolute right to attend the hearing" even though the father requested to be present at the hearing. In re Barry W., 21 Cal App. 4th 358, 26 Cal. Rptr. 2d 161 (1993). Also note that this right can be waived if the person in charge of the institution believes the parent has made an express statement or action indicating he or she does not want to attend the hearing. Legal Services for Prisoners with Children has written a manual that instructs prisoners on how to request transportation to court, which you may want to get for your son or daughter.
The parent will need to bring any letters of recommendation and evidence of his or her efforts toward rehabilitation to the hearing. The court will look favorably on this evidence, especially if it meets the terms of the case plan. The parent should let his or her lawyer know of any programs the parent has completed (for example, Alcoholics Anonymous, Narcotics Anonymous, parenting classes, vocational classes, etc.) and what family and community support the parent has.
Parents have 6 or 12 months, with a possible six-month extension, to reunify with their children. If the parent successfully completes the reunification plan requirements and can demonstrate that he or she is capable of providing a home for the child at the time of the hearing, the court will likely return the child to the parent. However, if the court finds that reunification is not possible, it must order a permanent plan be developed for the child so that the child will have a permanent, stable place to live.
The court decides first whether the child is adoptable. It is not required that an adult be willing and available to adopt the child at that point, but rather that there is a probability that the child will be adopted. If the court determines by clear and convincing evidence that it is likely the child can and will be adopted, the parent's rights will be terminated unless the court finds that termination would be detrimental to the child due to one or more of the following circumstances:
If adoption or termination of parental rights is not in the best interests of the child because of one of the reasons above, the court will either order that the present caretakers of the child become legal guardians of the child or order that the child remain in long-term foster care.
When parental rights are terminated, the parent no longer has any right to care for or even visit the child. Moreover, unless a grandparent is granted the right to adopt the child when the parent's rights are terminated, these extended familial ties are also legally ended. Thus, it is critical that the parent work from the very beginning of the time that the child is made a dependent of the court to stay in touch with the child, to regularly visit the child, and to show DSS and the court that he or she is trying to be a good parent. It is equally important that you as a grandparent or extended family member play an active role in the juvenile court dependency process.
If the child is being cared for by a relative and there is no court order (of dependency, legal guardianship, or custody) which gives the relative legal custody of the child, the parent may resume physical and legal custody of the child as soon as the parent returns, assuming the parent had legal custody to begin with. If the parent has drawn up a power of attorney form, a second form should be drawn up which discontinues, or revokes, the power of attorney. If the relative has received aid for the child, the parent should make an appointment with the eligibility worker to explain that the parent is now taking care of the child.
The parent will also have to go through a period of re-establishing him/herself as a good parent before reunification with the child. As the caregiver of the child, you probably want to continue regular contact with the child, but you will also want to be sensitive to the adjustment period both parent and child will need. The parent should make sure that the child and caregiver continue to see each other regularly, especially where the child has been with you for some time.
Legal Services for Prisoners with Children
1540 Market St., Suite 490 San Francisco, CA 94102
(415) 255-7036 firstname.lastname@example.org