WHAT IS A CHILD PROTECTIVE PROCEEDING?
When it appears that a child under 18 years old has been abused or neglected (harmed or not taken care of) or is in danger of being abused or neglected, a child protective agency may file a petition asking the Family Court to assist in protecting the child. In New York City, this agency is the Administration for Children’s Services (ACS). ACS is the petitioner, and the parent or caretaker is the respondent. It is the court’s responsibility to decide whether the allegations of abuse or neglect are true and, if so, what action the court should take to protect the child.
Upon the filing of an abuse or neglect case, ACS may request that a child be placed away from home for their protection, or it may request that the child remains in the home under certain conditions.
DO THE PARTIES NEED LAWYERS TO REPRESENT THEM?
Although respondents have the right to represent themselves, a respondent should obtain a lawyer. Respondents may hire lawyers to represent them in court or ask the court to assign lawyers at no cost if they cannot afford to hire their own. Each respondent must have a separate lawyer.
In all child protective cases, an “attorney for the child” represents the child. The lawyer usually works for The Legal Aid Society, Lawyers for Children, or another child advocacy organization. The attorney for the child may also be an 18-b panel member (assigned counsel).
WHAT IF THE POLICE OR AN AGENCY HAS REMOVED THE CHILD?
When the petition is filed in Family Court, the child may already be in foster care because ACS or the police may have already taken (removed) the child from home due to an emergency. In emergencies, ACS or the police may remove a child with or without a court order.
If the child has been removed without a court order, the parents may ask that a court hearing be held within three days of the request. This is commonly referred to as a 1028 hearing. At the 1028 hearing, the parents ask the court to decide whether the child may return home until the court finishes a full hearing or fact-finding of abuse or neglect allegations. ACS may ask that the child is in ACS custody (remanded) until fact-finding is held. ACS must prove that a return home would present an immediate risk to the child’s life or health. The court must also consider, in most cases, whether ACS made reasonable efforts to keep the child in the home before the removal. At the 1028 hearing, the judge must return the child to the parent unless the judge finds that returning the child to the parent would pose an immediate risk to the child.
In some cases, ACS asks the court’s permission to remove the child before taking any action. In that case, the parents are notified of the court date and, if the parents object to the removal, a hearing will be held before the child is removed. This is called a 1027 hearing.
IF THE CHILD IS NOT ALLOWED TO GO HOME, WHERE DOES THE CHILD GO?
If the judge finds that the child should not be with the parent, the parent may ask the judge to move the child to a relative’s home. The relative may be certified by ACS as a kinship foster parent, or the child may be placed there under a custody order (not foster care).
If the child is ordered to be placed or remains in ACS’s custody, ACS will assign the case to a foster care agency. The foster care agency will place the child with a specific foster parent, supervise the child and the foster home, and work with the parent to correct the problems that caused the child to enter foster care. A foster care agency will also be assigned if a relative is certified as a kinship foster parent.
HOW DOES THE COURT CASE BEGIN?
Attorneys file the petition for ACS. A summons must be delivered to the parents or other persons legally responsible for the child’s care to tell them to come to court so that they may hear the case against them and defend themselves. If the persons named in the petition are not the child’s parents but are people legally responsible for the child (a relative with a custody order or a person who has been caring for the child), then the parents must also be served with court papers so that they may appear in court if they wish to request temporary or permanent custody of their child. As a respondent on the petition, ACS must also notify the child’s other parent (the non-respondent parent) that a case has been filed and that he/she has the right to appear in court. This notice may be provided by mail. In some cases, other relatives of the child may also want to appear in court.
WHAT IS CASE CONFERENCING?
The judge may adjourn the case to be conferenced by a court attorney. A preliminary conference will be scheduled to discuss kinship resources (relatives who can care for the child if they are not allowed to go home with the respondent), visitation, and services for the respondents and the subject children. Another conference is usually scheduled to review issues raised at the preliminary conference, discuss a possible settlement of the case, and/or discuss preparation for fact-finding, including discovery issues (what each party intends to provide to the court as evidence).
WHAT HAPPENS AT THE FACT FINDING HEARING?
If the parties do not agree about whether the petition’s allegations are true, the court will hold a “fact-finding hearing” to determine whether the child has been neglected or abused.
At the fact-finding hearing, ACS may present hospital and agency records, photographs, and other evidence to prove neglect or abuse. ACS may call witnesses who heard or saw the abuse/neglect or to whom the parent admitted the abuse/neglect allegations. If only one parent is the respondents’ lawyer and the child’s attorney may cross-examine the witnesses, challenge the evidence that ACS offers, and present their own witnesses and evidence.
If appropriate, the child may be called a witness. Sometimes young children may be interviewed by the judge in “chambers” (the judge’s office) instead of in the courtroom if they believe they should talk privately. Only the child’s attorney is present for this interview, but the other attorneys may ask the judge to ask specific questions of the child.
WHAT HAPPENS AFTER THE FACT FINDING HEARING?
If the court finds that the abuse or neglect has not been proven, the court will dismiss the petition and return the child to his or her home.
If the court decides that the child has been abused or neglected, a dispositional hearing will be held so that the court can determine what should happen next. The court must decide that it is the child’s best interests, balancing how to protect the child with keeping or bringing it back together with the family.
If the child has not already been removed from the home and the court finds that removal would be best for the child, the court will remand the child to ACS’s custody before the dispositional hearing. The child may be placed in foster care or with relatives or other suitable persons until the court makes its final disposition.
Before the dispositional hearing, the court will order ACS and/or the foster care agency to investigate and report the child’s home and family. In some cases, the court orders Mental Health Services to evaluate the respondent. Reports are prepared to help the judge decide what orders will serve the child’s best interests.
WHAT HAPPENS AT THE DISPOSITIONAL HEARING?
At the dispositional hearing, the court receives evidence about what will be in the child’s best interest. Caseworkers from ACS and/or the foster care agency may testify, as well as the parents. Written investigations and reports from ACS, Mental Health Services, or other professionals may be given to the judge as evidence.
Possible dispositions include:
1) Suspending judgment for a maximum of one year. If the respondent complies with the terms and conditions of a suspended judgment, the petition will be dismissed after the suspended judgment period, despite the finding of abuse and/or neglect. However, the finding of abuse/neglect remains, even if the case is dismissed. If the child is not living with the parent, the court may not order a suspended judgment. The suspended judgment can be extended for another year if the court conducts a hearing and finds that exceptional circumstances (serious reasons) require continued court supervision.
2) Releasing the child to the parent(s) or another person (s) legally responsible with supervision on conditions specified by the court.
3) Placing the child in foster care while services are provided to the parents to help them become better parents and allow their possible return to them at a future date.
4) Issuing an Order of Protection.
5) Placing the respondent under the supervision of ACS.
6) Granting custody or guardianship of the child to a relative or a suitable person upon the parents’ consent. If the parent fails to consent, the court, after a hearing, may find extraordinary circumstances to support an order granting custody or guardianship.
For information on serving family court papers, contact order of protection process service, call (800) 774-6922. Representatives are available Monday-Friday 8 am – 8 pm EST. If you found this article helpful, please consider donating. Thank you for following our blog, A space dedicated to bringing you news on breaking legal developments, interesting articles for law professionals, and educational material for all. We hope that you enjoy your time on our blog and revisit us! We also invite you to check out our Frequently Asked Questions About Process Servers.