Expert Advice When You Need It Most
Posted almost 3 years ago. Applies to Washington, 19 helpful votes, 0 comments
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Grounds for DependencyAnyone can file a dependency petition. However, the petitioner will also have the responsibility of ensuring that court-ordered services are made available to the parents. Thus the State (Child Protective Services, Division of Social and Health Services) is almost always the petitioner. The dependency petition has to allege the factual basis for seeking dependency. The legal grounds are: 1. Abandonment, 2. Abuse or neglect by a person legally responsible for the care of the child, or 3. The child has no parent, guardian or custodian capable of adequately caring for the child such that the child is in circumstances which constitute a danger of substantial damage to the child's psychological or physical development. 2
Shelter CareThe first court appearance is at Shelter Care. A shelter care hearing must be held within 72 hours of removal (except for weekends and holidays). The legal standard is "reasonable cause" to keep the children out of the home. The issue at shelter care is whether the children can be returned home immediately. If paternity has not been established, then that parent has no chance of placement until paternity is established. Hearsay is allowed at shelter care, the Rules of Evidence do not apply, and parents will be under oath when testifying. Parents can waive shelter care, which can be advantageous if there's a lot of evidence or there's efforts parents are making to get their children back. Waiving shelter care does not mean that the parent agrees with the allegations. Often it is the parent waiting for fact-finding to put on a stronger case. If a parent wants a contested case, the hearing may be on a different day. The case only has to be addressed in 72 hours. 3
Case ConferenceA meeting must be held within 30 days of removal of children. This meeting, called a case conference, is an opportunity for the parents, DSHS, the guardian ad litem, and others to meet and discuss what services DSHS wants to see in place. Parents can agree to do services if they wish. However, until the dependency petition is granted or denied by a court, everything the parent says and does can be used by DSHS in the dependency trial. 4
First-Set Fact-FindingMany jurisdictions have a court appearance called a "first-set fact-finding." It is a requirement from the court that all the players come together at court to determine if the case is going to go to trial. The court does not address the underlying issues or services. In many cases, the parties are able to reach an agreement at this stage and strike the trial. At any point, the parents may agree to dependency. Often a parent will enter into an agreed order if they are allowed to comment on the underlying allegations. For many parents, this chance to set the record straight is all they wanted in the first place. Doing classes and assessments is acceptable to them, they simply resisted being mischaracterized by DSHS. Whether by agreement or after a trial, a child can be placed in foster care, with relatives, or in-home with the parents under a dependency order. 5
Fact-Finding TrialIf the parties haven't reached an agreement, then the matter goes to trial. The trial is only before a judge, there's no jury trials in dependency. The legal standard is "preponderance of the evidence." The Rules of Evidence apply. This is the opportunity for the parents to contest the actual allegations against them. Experts may testify as well as any other person involved in caring for the child to this point. The court may grant the petition as is, grant the petition but limit the legal basis (i.e., deny the "abuse/neglect" ground, but allow the "no suitable parent" ground), or dismiss the petition altogether. If the court grants the dependency petition, there must be a dispositional hearing within 14 days. Usually it is done immediately following the trial. The services ordered by the court must be made available to the parent and be designed to help correct the parental deficiencies that brought the child into care in the first place. 6
Review HearingsAt least once every 6 months, there must be a review hearing. At these hearings, the court has to determine if the state is making reasonable efforts to eliminate the need for out-of-home placement, parents' compliance and progress with court-ordered services (this is usually the most hotly contested issue), any changes to the dispositional plan, changes to the parent's visits, potential changes in placement. These are the primary issues. Parents should focus on their own compliance and progress. This is not like family law; there's no advantage to be had by emphasizing the other parent's lack of compliance or progress. At the end of the hearing another court date for the next review hearing will be set. If the situation warrants, the court can order an early review hearing. Any party can also request an early review hearing. Similarly, any party can set a motion to address a specific service, visitation, placement, or any other issue. 7
Staffings"Staffing" is just a meeting. These occur all throughout the dependency process. They may be formal meetings (FTDM--Family Team Decision-Making meeting to look at placement) or very informal. DSHS is required to have a CPT (Child Protection Team) before sending a child home. CPT is an internal requirement for DSHS, not a court requirement--although courts are often way too deferential to CPT results. Sometimes DSHS will have internal staffings that the parents and their lawyers are not invited to. There are no limits to how many staffings can happen in a case. Telephonic presence in staffings can keep incarcerated parents in the loop. 8
Permanency PlanningWithin 12 months of the child being out of the home, there has to be a permanency planning hearing to determine the long-term plan for the child. DSHS makes its recommendation to the court and the parents can contest it. The permanent plan may be return home to one parent (or both if still together), adoption, long-term foster care, guardianship, non-parental custody. Children who are close to 18 may be allowed to "age out" of the system. The court adopts a primary permanent plan and an alternate plan. The court can "dual track" the case by adopting two plans and making them equally important. Usually this is done with adoption and return home. The parent still has the ability to have the child returned home, but the state will also pursue adoption. This holds the parent very accountable. In many cases, the permanency planning hearing occurs while the services are still underway. Permanent plans can change as conditions in the case warrants. 9
OutcomesA child may be returned home (but has to wait 6 months after return home for dismissal), sent to live with the other parent (6 month wait plus a new or modified parenting plan), living with others under a non-parental custody decree, adopted, or if older, remain in long-term foster care or in a guardianship. Much depends on the parent's relationship with the social worker and the CASA (Court Appointed Special Advocate). Unsurprisingly, some social workers and CASAs are fantastic while others are a child's worst nightmare. A parent must stay in contact, using email to document contacts, and be prompt and proactive about services. Dependency is not a case that you want to represent yourself in. Public defense agencies vary in their effectiveness. Finding private attorneys who can competently handle a dependency is difficult. Seek someone who routinely does dependencies. Criminal defense and family law aren't the same as dependency. Current dependency experience is essential. Additional ResourcesRelated Questions1 Attorney answers: 
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