When I initially began hearing dependency cases in juvenile court in 2012, there were approximately 12,000 kids in out-of-home placements throughout Arizona. When I left the juvenile court bench in June of this year, the number of kids in out-of-home placements had grown to over 19,000. The current condition of Arizona’s child welfare system has been in the news recently and now many people are left wondering how these kids are brought into the system and what role the juvenile court plays to insure the safety of our state’s most vulnerable citizens.
In this blog, I will outline the process that brings kids into the juvenile welfare system and the court procedures that are in place in order to protect these children while also providing their parents with notice and due process regarding their parental rights as well as informing them about the status of their children.
Under state statutes, a child can be taken into temporary custody as a temporary ward of the court pursuant to a juvenile court order on a sworn petition by an “interested person, a peace officer or a Department of Child Safety (DCS) worker” that provides reasonable grounds to believe that temporary custody of that child is clearly necessary to protect the child from suffering abuse or neglect. A child cannot remain in temporary custody for more than 72 hours unless a dependency petition is filed. Once a child is taken into temporary custody, the child’s parent must be notified within 6 hours of the child being taken into temporary custody. The child’s parent must be notified in writing regarding the reasons for the removal, the services that are available to them, the name and telephone number of the agency responsible for the child and a statement of the reasons for the temporary custody of the child.
In the vast majority of the cases, DCS files a dependency petition within the requisite 72 hours after taking a child into temporary custody. Once a dependency petition is filed the juvenile court must hold a preliminary protective hearing, within 7 days, to review the circumstances that caused the child to be taken into temporary custody. The child’s parents have the right to be at this hearing, and it is at this hearing that the parents are appointed lawyers and the court appoints the child a guardian ad litem. A DCS case worker is also present at this hearing with their lawyer from the Arizona Attorney General’s Office.
It is at the preliminary protective hearing that the party requesting that the child remain out of the parent’s custody, usually DCS, has the burden of proving that continued temporary custody of the child is clearly necessary to prevent abuse or neglect prior to a full hearing on the dependency petition. It is at this stage of the proceeding, that DCS presents testimony and evidence to support their claim that an out-of-home placement is necessary to prevent the child from suffering further abuse and/or neglect from the parents. The type of evidence that is usually presented at this hearing, takes the form of testimony from the DCS investigator that initially considered the claim of abuse or neglect. Testimony or reports from expert witnesses, such as doctors or nurses, are also used in these hearings. If the judge finds that DCS has established their burden, then the child remains in DCS custody. If DCS does not meet their burden, then the child is returned to the parents.
If the judge orders that the child remain in DCS custody, DCS must then make reasonable efforts to place the child with any siblings and if that is not possible, DCS must maintain frequent visitation between siblings. Additionally, if the child is not returned to the parents, the judge must enter orders regarding the placement of the child pending a full hearing on the dependency petition and set up visitation between the parents and the child, if deemed appropriate. It is also at this time that the judge determines the services for the parents that are reasonable and necessary to carry out the case plan.
If the child remains in temporary DCS custody after a preliminary protective hearing is conducted, then the process of determining whether the child is dependent as to the parents begins. The judge will set an initial dependency hearing to insure that all parents have been legally served with the dependency petition. Once service regarding the dependency petition is complete as to all parents, then the interested parties must determine whether a dependency adjudication hearing is necessary. Surprisingly in many instances, the parents will not contest the dependency petition and agree to a judicial finding that their child is dependent. If the child is found dependent in this manner, the child will remain in DCS custody, the judge will set a case plan of “family reunification” and the parents will be informed of the necessary services that they must comply with in order to have their child returned to their care. The judge will also order DCS to make reasonable efforts to provide services to the child and the parents to achieve the case plan. The judge will then set a report and review hearing in 6 months (less time if the child is 0-3 years old) to determine how the child and the parents are progressing with the required services.
If the parents do not agree that their child is dependent, then a dependency adjudication hearing will be scheduled. At the dependency adjudication hearing, DCS has the burden of proving, by a preponderance of the evidence, that the allegations in the dependency petition are true and that the child is dependent as to their parents. If DCS does not meet their burden at the hearing, then the judge returns the child to the parents. If the judge determines that DCS met their burden and the child is dependent as to their parents, then the child will remain in DCS custody, the judge will set a case plan of “family reunification” and the parents will be informed of the necessary services that they must comply with in order to have their child returned to their care. The judge will also order DCS to make reasonable efforts to provide services to the child and the parents to achieve the case plan. The judge will then set a report and review hearing in 6 months (less time if the child is 0-3 years old) to determine how the child and the parents are progressing with the required services.
If the parents have not remedied the circumstances that initially brought the child into state custody, then the Court will continue to set periodic hearings to review how the parents and the child are progressing with their services. If the parents are unable to remedy the circumstances that brought the child into state custody, DCS can request that the case plan be changed from “family reunification” to another case plan that will provide the child with permanency. Some of the case plans that are requested at this point in the proceeding are permanent guardianship or termination of parental rights. Before the judge can change the case plan, another hearing must be set and all parties must be heard on the requested change. After hearing and considering the positions from all the parties, the judge will determine if it is in the best interest of the child to change the case plan to something other than family reunification.
In this blog, I have set out the legal requirements and procedures necessary to remove a child from their parents as well as the safeguards afforded to the parents once their child is removed from their care. From my four years as a juvenile court judge, it was my experience in the vast majority of my cases that the participants: DCS, assistant attorneys general, the parents’ attorneys, guardian ad litems and the parents take these proceedings very seriously. I hope that my explanation of the dependency system has been helpful and will give all readers more insight into the process that is geared to act in the best interest of the child.
Judge James P. Beene
Maricopa County Superior Court Judge