Written by attorney Buta Biberaj

Virginia Judicial Proceedings in Abuse and Neglect Cases

VirginiaJudicial Proceedings inAbuse and Neglect Cases

By Buta Biberaj, Esq.

Biberaj & Snow P.C.

7 East Market Street

Suite 102

Leesburg, VA 20176

(703) 779-2000 Telephone

(703) 779-1025 Facsimile

[email protected]


This presentation discusses some of the judicial proceedings regarding child protective services, the investigation and court proceedings as they relate to cases of alleged child abuse or neglect. This outline is intended to be for information only.

I.Initiating Court Involvement – Child Protective Services

A. Emergency Removal Order (§ 16.1-251). A child may be taken into immediate custody and placed in shelter care pursuant to an emergency removal order in cases in which the child is alleged to have been abused or neglected.

1.0Ex Parte Emergency Removal Order(§16.1-251(A)). Essentially, an ex parte hearing allows the court to conduct a hearing without the presence of one of the parties because the situation demands immediate action or irreparable harm will likely occur.

2.0Affidavit or Sworn Testimony Must Accompany Petition. The worker will be required tosubmit an affidavit or to present sworn testimony to prove that the case meets the criteria for removing a child from the home.

3.0The Petition, Affidavit or Sworn Statement in Support of Emergency Removal Order MustSpecify the Factual Circumstances Warranting Removal.

3.1 Evidence Must Establish an Immediate Threat to Life or Health of the Child. (§16.1-251(A)(1)).

3.2 Petition, Affidavit or Sworn Testimony Must Show Reasonable Efforts to Prevent Removal and No Alternatives Less Drastic. (§16.1-251(A)(2)).

4.0Suitable Relatives Must be Considered for Placement (§16.1-251(C))

B. Preliminary Removal Order (§ 16.1-252)

This order may be granted when there is proof that the circumstances of the child are such that the child is subject to severe or irremediable injury to his life or health and that no less drastic alternatives to removing custody are available.

1.0Notice Must be Given to All Parties (§16.1-252(B)): At least twenty-four notice must be given.

2.0The Preliminary Removal Hearing. In the hearing, DFS must prove:

a. The child would be subjected to imminent threat to his life or health if the child remained with the caretaker;

b. Such circumstances would result in severe and irremediable injury to the child; and

c. The provision of services to prevent placement was not successful or possible, and there are no alternatives less drastic than removal which could reasonably protect the child's life and health.

4.1 Parties May Present Witnesses and Evidence (§16.1-252(D)).

5.0 If Court Orders Removal, Court Must Determine Who Shall Have Custody of the child and May Provide for Reasonable Visitation (§16.1-252(F)(2)).

6.0 Court May Impose Additional Requirements or Conditions (§16.1-252(F)) which may include a preliminary protective order pursuant to §16.1-253.

7.0 Court Must Make Finding of Abuse or Neglect (§16.1-252(G)) at theAdjudicatory Hearing.

8.0 Dispositional Hearing (§16.1-278.2): Once the Court makes a finding of abuse or neglect and enters an order removing the child from his home or issuing a preliminary protective order, a dispositional hearing shall be held within seventy-five of the preliminary removal order hearing.

9.0 Violation of Order Constitutes Contempt of Court (§16.1-252(J))

II. Foster Care

A. Entering Foster Care. Children enter foster care through court commitment based on an abuse or neglect petition; a CHINS (children in need of services) petition; an entrustment; delinquency or request for relief of care and custody petitions; and non-custodial foster care agreements.

1.1 Reasonable efforts requirements. Both federal ( Adoption Assistance and Child Welfare Act of 1980, Public Law 96-272) and state law (§§ 16.1-251, 16.1-253, and 16.1-278) require that reasonable efforts are made to prevent or eliminate the need for removal of the child from the home and to make it possible for the child to be returned home.

III. Placement to Achieve Permanency

A.Introduction. Permanency planning with the child and family focuses on preserving

the family, reunifying the family, or achieving permanency for the child with another family. It involves facilitating lifelong connections for the child with siblings, extended family, and other significant adults.

1.0 Placement stability is not permanency. Permanency is only achieved when the child leaves foster care to live with a permanent family. The child is either:

a. Reunified with his family with custody transferred back to the parents,

b. Adopted by a relative or non-relative, or

c. Living with a relative who obtains custody of the child.

2.0 Engaging relatives and significant adults as placement options. As part of the placement process, DFS shall diligently search for adult relatives and other individuals who have had significant relationships with the child to identify placement options. Individuals not related by birth, marriage or adoption to the child, but who have emotionally significant relationships with the child, may be willing to fulfill the functions of a family relationship for the child in foster care and should be considered.

3.0 Placements leading to reunification

The service worker shall make reasonable efforts to make placements that safely reconnect the child with his or her birth parent(s) or prior custodians to facilitate reunification within the shortest practicable time 16.1-281 B). The child's health and safety shall be the paramount concern. Reunification should always be pursued unless aggravated circumstances exist that indicate return home is not in the child’s best interest.

4.0 Placements leading to adoption

If reunification is not reasonably likely for the child within a practicable time, adoption of the child by a relative or non-relative provides the child the same legal and social status that is afforded to children born to the parent(s). In determining the best interests of the child for adoption, the service worker should consider the relevant factors that are required for the circuit court or juvenile and domestic relations district court. These factors include, but are not limited to:

a. The birth parent(s)' efforts to obtain or maintain legal and physical custody of the child;

b. Whether the birth parent(s) are currently willing and able to assume full custody of the child;

c. Whether the birth parent(s)' efforts to assert parental rights were thwarted by other people;

d. The birth parent(s)' ability to care for the child;

e. The age of the child; and

f. The quality of any previous relationship between the birth parent(s) and the child and between the birth parent(s) and any other minor children…" 63.2-1205).

Permanency is achieved when the final order of adoption is entered.


4.1Placements in relative homes. When the child cannot live safely with his or her birth parents or prior custodians, the service worker shall first explore placements with relatives and extended family members. The service worker should determine if the relatives, whether fully approved provider or not, are capable and committed to:

a. Being a permanent connection and resource for the child;

b. Housing and caring for the child as long as may be needed, understanding the need for permanency and concurrent planning;

c. Protecting the child"s health and safety, including protecting the child from abuse and neglect by the birth parents or other individuals, if needed;

d. Establishing boundaries to address any unauthorized requests by the birth parents for access to the child, if needed;

e. Working collaboratively with the local school system and LDSS to ensure the child is enrolled and attending an appropriate educational program for the child;

f. Housing and caring for the child’s siblings, or if this is not feasible, ensuring communication and visits with siblings; and

g. Maintaining connections, communication and visits with birth parents, prior custodians and other significant adults in the child’s life, consistent with the child’s best interest.

The child shall not be placed with a relative if it is contrary to the child's best interests.

5.0 Determining when Adoption is not in the child’s best interest. The child, age 14 years and over, does not consent to adoption and the circuit court finds that it is not in the child’s best interest to be adopted 63.2-1202 3).

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