Child Does Not Return Home Upon Criminal Charges Being Dropped

A child entered protective services when her mom was sent to jail. Upon the charges being dropped, birth mom shows up at the home and demands her child go home with her at that time. Here is a look at what happens in this situation:

Children enter the foster system for various reasons, one of which is the incarceration of their custodial parent.  When a parent is arrested and a suitable relative or family friend is not available to care for the child, the child enters the complex child welfare system.

The Department of Child Services (DCS) files a dependency petition and requests temporary orders placing the child in the care and custody of the department.  Once a judge grants custody to DCS, DCS is responsible for determining the child’s placement absent a subsequent court order or a dismissal of the dependency petition.  Thus, if the parent is released from jail because the criminal charges were dismissed, the parent does not have the legal authority to demand the return of their child.  The reunification of the family will require court action.

One of the first phone calls a parent should make upon being released from jail is to his/her attorney.  The attorney can assist the parent with regaining custody of his/her child.  If the only reason the child is in DCS custody is because the parent was incarcerated, then DCS may elect to place the child with the parent and dismiss the case.  However, if DCS believes the child’s safety would be in imminent danger, the child is likely to remain in care until the imminent danger is neutralized.  The parent could alleviate DCS’s concerns by participating in services or having a relative or friend reside with the family to ensure the child is appropriately cared for.

Also, the parent has the option of having his/her attorney file a “Rule 59” motion.  A “Rule 59” motion is a request by the parent to have the child returned to his/her physical custody.  The court will hold a hearing to determine if the return of the child will create a substantial risk of harm to the child.   If the court does not find a substantial risk of harm exists, the child will return to the custody of the parent.

Christina Phillis

Arizona Public Defender

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