Child Abuse, Neglect & Foster Care Cases
- How Does Virginia Law Define Abuse and Neglect?
An abused or neglected child is a child whose caregiver creates, inflicts, allows or threatens physical or mental injury to the child other than by accident.
In addition, abuse or neglect can occur when the caregiver does not provide the care necessary for the child’s health or allows a sexual act to be committed against the child. A child can be abused or neglected even if it is not clear who injured the child.
An abused or neglected child may be a child whose caregiver abandons the child, who is mentally or physically unable to care for the child, or who leaves the child home alone with a person, not a relative, who has been convicted of certain sex offenses.
A child who is with a parent or other caregiver while illegal drugs are manufactured or sold can be abused or neglected.
-Removal of a Child From the Care and Custody of His Parents or Custodians
In accordance with Section 63.2-1517 a doctor, child-protective services worker for the Department of Social Services or a law-enforcement official investigating a report or complaint of abuse and neglect may take a child into custody for up to 72 hours without prior approval of parents or guardians for up to 72 hours if
(1) the circumstances of the child are such that continuing in his place of residence or in the care or custody of the parent, guardian, custodian or other person responsible for the child's care, presents an imminent danger to the child's life or health to the extent that severe or irremediable injury would be likely to result or if evidence of abuse is perishable or subject to deterioration before a hearing can be held;
(2) a court order is not immediately obtainable;
(3) the court has set up procedures for placing such children;
(4) following the child being taken into custody, the parents or guardians are notified as soon as practicable with every effort made to provide such notice in person;
(5) a report is made to the local DSS; and
(6) the Court is notified.
If a child is removed, a Petition must be filed with the Court and a hearing held within 72 hours. If the 72 hour period expires on a Saturday, Sunday, legal holiday or day on which the court is lawfully closed, the seventy-two hours shall be extended to the next day that is not a Saturday, Sunday, or other legal holiday, or day on which the court is lawfully closed.
At the initial hearing on this Petition, DSS must provide factual evidence through a witness or affidavit (1) that the child would be subjected to an imminent threat to life or health to the extent that severe or irremediable injury would be likely to result if the child were returned to or left in the custody of his parents, guardian, legal custodian or other person standing in loco parentis pending a final hearing on the petition; and (2) reasonable efforts have been made to prevent removal of the child from his home and there are no alternatives less drastic than removal of the child from his home which could reasonably and adequately protect the child's life or health pending a final hearing on the petition. When a child is removed from his home and there is no reasonable opportunity to provide preventive services, reasonable efforts to prevent removal shall be deemed to have been made.
If the Court determines that sufficient evidence was presented to justify the removal of the child, the Court will enter an Emergency Removal Order approving the removal and will schedule another hearing within 5 business days. A Guardian ad litem for the child will be appointed by the Court. At least 24 hours prior to this hearing, known as the 5 day hearing, notice will be provided to the GAL, to the parents, guardian, legal custodian or other person standing in loco parentis of the child and to the child if he or she is twelve years of age or older. The parents shall be advised of their right to an attorney. At the 5 day hearing, any of the parties shall have the right to have the hearing continued to allow additional time to prepare for the hearing. If the case is continued, the next hearing must be within 30 days and is known 30 day hearing.
If the court finds by the preponderance of the evidence that (a) the child would be subjected to imminent threat to life, or health such that severe or irremediable injury would be likely to result without removal pending a final hearing; and (b) reasonable efforts have been made to prevent removal and no less drastic alternatives to removal exist, teh Court shall enter an Order approving the removal. Less drastic alternatives include, but are not limited to, the provision of medical, educational, psychiatric, psychological, homemaking or other similar services to the child or family or the issuance of a preliminary Protective Order.
This Order shall provide that (1) the child be placed in the temporary care and custody of a suitable person under the supervision of the local department of social services, with consideration being given to placement in the temporary care and custody of a relative or other interested individual, including grandparents and shall (2) order that reasonable visitation be allowed between the child and his parents, and between the child and his siblings, if such visitation would not endanger the child's life or health.
The Court may transfer temporary custody of the child to a relative or other interested individual, including grandparents. The Court must consider whether the relative or other interested individual is one who (i) is willing and qualified to receive and care for the child; (ii) is willing to have a positive, continuous relationship with the child; and (iii) is willing and has the ability to protect the child from abuse and neglect. The Court's order transferring temporary custody to a relative or other interested individual should provide for compliance with any preliminary protective order entered on behalf of the child and, as appropriate, ongoing provision of social services to the child and the temporary custodian.
- How Do You Get Your Child Back Home?
Children grow best in a permanent, safe and loving family. When they are removed from their homes, it is best for them to return as soon as possible. For your child to be returned to you, you must make your home safe and ensure proper care of your child within certain time limits. When children cannot return to their families, another permanent, safe home will be found for them–often through adoption.
If the preliminary removal order includes a finding of abuse or neglect and the child is removed from his home, a dispositional hearing shall be held within seventy-five days of the Preliminary Removal Order (5 day) hearing. At this hearing, the Court will consider the plan for the child and the parents/custodians including a description of the expectations for the child and parents, the services to be provided for the child and parents, and the deadlines by which progress must be made. The plan filed by DSS must provide for one of the following goals: (1) return home, (2) placement with a relative, (3) a planned permanent living arrangement, (4) independent living or (5) adoption.
-What Happens If DSS Seeks to Have Your Parental Rights Terminated?
Before a child can be placed for adoption, the Court must approve a plan that provides that adoption is in the best interests of the child and must terminate the parental rights of the parents. DSS will have to file a Petition with the Court, a GAL will be appointed for the child, parents will be advised of their right to an attorney and may qualify for Court appointed counsel and a hearing will have to be held.
*If an abused or neglected child is in foster care as the result of a court commitment, an entrustment agreement or other voluntary relinquishment, parental rights may be terminated, if:
(a) neglect or abuse suffered by a child presented a serious and substantial threat to the child’s life, health or development; and (b) it is not reasonably likely that the conditions causing neglect or abuse can be substantially corrected or eliminated within a reasonable period of time.
Proof of any of the following will be considered prima facie evidence of fact that it is not reasonably likely the conditions causing neglect or abuse can be substantially corrected:
(a) parent(s) suffering from a mental or emotional illness or mental deficiency of such extreme severity that it would prevent them from assuming care for the child;
(b) parent(s) are habitual drug or alcohol addicts and have not responded to or followed through with treatment which could have improved parental functioning; or
(c) parent(s) have not responded to or followed through with appropriate, available and reasonable rehabilitative efforts designed to reduce, eliminate or prevent the neglect or abuse of the child.
*If a child is in foster care as the result of a court commitment, an entrustment agreement, or other voluntary relinquishment, parental rights may be terminated if: (1) the parent(s) have failed to maintain continuing contact with the child and have failed to provide for or plan for the future of the child for six months after the child’s placement in foster care; and (2) the parent(s) have been unwilling or unable, within a reasonable time, not to exceed twelve months from date of placement in foster care, to remedy the conditions which led to foster care placement.
*If a child is found to be abused or neglected as the result of being abandoned, parental rights may be terminated if: (1) circumstances of abandonment are such that identity or whereabouts of parent(s) cannot be determined; and (2) no one has come forward to identify the child and claim a relationship with the child within three months following placement of the child in foster care; and (3) efforts have been made to locate parent(s) to no avail.
*In addition to the grounds listed above, the parental rights of a child in foster care may be terminated if: (a) parental rights of a sibling have been involuntarily terminated; (b) parent has been convicted of murder or voluntary manslaughter or a felony attempt, conspiracy or solicitation to commit murder or manslaughter if the victim was a child of the parent or was a child with whom the parent resided or was the other parent of the child; (c) the parent has been convicted of felony assault or felony sexual assault resulting in serious bodily injury if the victim was a child of the parent or a child with whom the parent resided at the time of the offense; (d) the parent has subjected the child to “aggravated circumstances.”
Serious bodily injury is defined as bodily injury that involves substantial risk of death, extreme physical pain, protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ or mental faculty.
Reasonable efforts to reunite the child with a parent convicted of certain felonies or who has been found by the court to have subjected any child to “aggravated circumstances” shall not be required.
- These Are Your Rights As a Parent:
1. You have the right to an attorney. If you cannot afford to pay for an attorney, one may be appointed for you by the Court.
2. You have the right to admit or deny the allegations made about you and your family.
3. You have the right to be notified of all Court hearings. You must keep the Court informed if you move.
4. You may have an interpreter appointed by the Court if you do not speak or understand English or if you are deaf or hard-of-hearing.
5. You have the right to talk to your social worker and your attorney. But remember, they may be busy with someone else when you call. Be sure to leave a message with a phone number where you can be reached or call them again. Keep track of the best times to call them.
- These Are Your Responsibilities As a Parent:
1. Take this seriously.
2. Attend the court hearings.
3. Do what the Foster Care Plan says you have to do. If you do not understand what is
required, ask your attorney.
4. Stay in touch with your attorney and your social worker. Be sure they always have a current address and telephone number for you.
5. Be sure that you know what you are supposed to do and when, and then do it. Things move very quickly in child abuse and neglect cases. It will make a difference in whether or not your child is returned to you.
- Right of Foster Parents and Relative Caregivers to be Heard:
The Adoption and Safe Families Act provides that foster parents, pre-adoptive parents, and relative caregivers have a “right to be heard” in foster care review hearings and permanency planning hearings. This provision is intended to provide you with an
opportunity to give input about the child in your care. However, whether you are asked to speak in court may depend on the following:
*The development of case strategies and the presentation of evidence to the court by the attorneys, including the guardian ad litem. These presentations of evidence may or may not include your testimony.
*Your contact with the child’s social worker, guardian ad litem or court-Appointed Special Advocate, or with the parents’ attorney or the attorney for the local department of social services, during which you provide them with information about the child that they can communicate to the court. This may be all the attorneys or the guardian ad litem believe is necessary for the judge to make his/her decision .if additional or clarifying information is needed by the court, beyond the evidence presented by the attorneys and guardian ad litem, some judges may question you directly in open court.
If you have information that you want to share with the court, you should feel comfortable notifying the attorney for the local department of social services, the parents’ attorney and/or the guardian ad litem that you would like to address the court.
Understand that if you speak in court, the attorneys, the guardian ad litem and/or the judge may ask you questions. So that the child’s needs can be met through available services, please do not wait until a court hearing to inform the caseworker of any problems or concerns you have regarding the child.
For more information on the Right to Be Heard, see the following document prepared by the Court Improvement Program, Office of the Executive Secretary, Supreme Court of Virginia,
www.courts.state.va.us/courtadmin/aoc/cip/resources/asfa_brochure_web.pdf
- Family Partnership Meeting
Parents, children and extended families may be asked by the Department of Social Services to participate in a Family Partnership Meeting. The meeting will be an opportunity for families to plan for their children. It is extremely important for all to participate.
The goal of the Department of Social Services is to work together with parents to create a comprehensive support system for their children and to involve birth families and community members, along with resource families, service providers and agency staff, in all placement decisions. DSS will work with all of these interested parties to try and prevent children from coming into care and to return children to parents with services where appropriate or to find other permanent solutions for children. To make this possible, DSS must work to ensure a network of support for the children and the adults who care for them.
DSS committed to using Family Partnership Meetings because DSS believed the following:
- All families have strengths;
- Families are the experts on themselves;
- Families deserve to be treated with dignity and respect;
- Families can make well-informed decisions about keeping their children safe when supported;
- Outcomes improve when families are involved in decision making; and
- A team is often more capable of creative and high quality decision making than an individual.
- Who Will Be Involved in Your Case:
1.) Your Social Worker
Social Services will assign a foster care Social Worker for your child and family. When you go to Court, you should be given that person’s name and phone number. Your Social Worker should:
Help you understand the problems that brought you to Court;
Help you work on the steps you must take to have your child returned to you; and
Maintain regular contact with you and your child.
2.) Your Attorney
The Court may appoint an Attorney for you who should contact you before appearing in court. Or, you may want to hire your own attorney. Your attorney represents your rights and your wishes in the case. Your Attorney should:
Talk with you before every hearing and speak for you in Court;
Help you understand your rights; and
Tell you about the hearings you will attend and what to expect at each hearing.
3.) Your Child’s Attorney - the Guardian Ad Litem (GAL)
The Court will appoint an attorney for your child. This attorney is called a Guardian Ad Litem (GAL). The GAL’s job is to meet with your child and tell the Court what the GAL believes is best for your child. You need to cooperate with the GAL by answering the GAL’s questions and letting the GAL visit with you or your child. The GAL represents the best interests of your child. The GAL does not represent you.
4.) The Department of Social Services’ Attorney
Social Services also may have an attorney who helps to present information to the Court about what Social Services believes the Court should do for the child and family.
- Additional Resources:
A Handbook for Parents and Guardians in Child Dependency Cases (English):
http://www.courts.state.va.us/courtadmin/aoc/cip/resources/handbook_for_parents_and_guardians.pdf
A Handbook for Parents and Guardians in Child Dependency Cases (Spanish):
Manual para los padres y apoderados legales en casos de menores dependientes:
http://www.courts.state.va.us/courtadmin/aoc/cip/resources/handbook_for_parents_and_guardians_spanish.pdf
Using Mediation in Child Abuse, Neglect and Foster Care Cases:
http://www.courts.state.va.us/courtadmin/aoc/cip/resources/mediating_for_permanency_vol1.pdf
Time Line for Child Abuse, Neglect and Foster Care Cases:
http://www.courts.state.va.us/courtadmin/aoc/cip/resources/timeline_jdr.pdf