A dependency is an assertion by the state or a third party that a parent is unfit or unable to care for their children. Dependency Court cases involve the protection of children that have been or are at risk of being abused, neglected or abandoned.
The process begins when a report is received by DCS regarding possible neglect or abuse of a child. An investigator will look into the matter and may remove the child from the home and serve temporary custody notice to the parent. Within 72 hours of removal DCS will hold a Team Decision Meeting (TDM) where the parents and DCS will discuss safety concerns, possible placement issues and potential Service.
Parents are entitled to retain and have an attorney present during the TDM and if unable can even bring supportive family and friends.
If the Child(ren) is/are not returned within 72 hours of removal, DCS will request the Attorney General file a dependency petition. Once a petition is filed requesting that the children be found dependent wards of the state, the court schedules a pre-hearing conference and a preliminary protective hearing and appoints counsel for the parents and a Guardian ad Litem for the children.
Prior to the Pre-Hearing Conference, counsel should contact the parent to discuss the case. If there is not sufficient time between appointment of counsel and the date of the Pre-Hearing Conference, the attorney will meet with the parent prior to the conference and Pre-Hearing Conference will take place shortly after. The purpose of this conference is to facilitate a discussion regarding the conditions that resulted in DCS involvement, the safety plan, and parenting time in a non0adversarial manner.
Preliminary Protective Hearing
The formal hearing before the judge where agreements reached at the prehearing conference are entered on the record. Also, this hearing is where the parent may dispute the removal of their children and request a hearing to determine whether the children require out of home placement. If a parent does not appear for the pre-hearing conference and the preliminary protective hearing, the matter will be set for an initial hearing.
An initial hearing is set 21 days from service of a dependency petition. At the initial hearing the parents can deny or admit the allegations in the petition regarding inability to parent. If the parents deny the allegation the court will set the matter for an adjudication hearing (trial) where the state must prove to the court by a preponderance of the evidence that the children are dependent and in need of state care.
Prior to the adjudication hearing the court may hold a settlement conference with a mediator in hope of resolving some matters in a non-adversarial manner. After the settlement conference, the court will hold a pre-adjudication conference to discuss adjudication issues and schedule the adjudication dates.
The adjudication will take place within 90 days from service of the petition. The state, represented by the Attorney General's Office, has the burden of proving the children were not adequately cared for and the parents are not capable of adequately caring for the children at this time. The state's witnesses will be the DCS worker who conducted the investigation of the home and the parents, any family or friends who can testify about the treatment of the children, police (if they were called to the residence), and anyone familiar with the neglect or abuse and both parents.
Since a finding of dependency is a civil matter, the parents do not have a constitutional right to remain silent; they must answer the states questions, unless they are pending criminal charges on the same allegations. The parents, through their attorneys, will have an opportunity to call witnesses to refute the allegations presented by the state.
After all the witnesses testify the judge will make a ruling regarding dependency. If the state fails to prove the children are dependent the petition will be dismissed and the children will be ordered returned to the parents custody. If the children are found to be dependent the court will hold a disposition hearing within 30 days of the trial.
At the Disposition Hearing the court will determine the appropriate placement of the children, establish a case-plan and outline services the parents and children will receive. DCS will be required to submit a case plan to the court regarding the long term goals for the children, family reunification or severance and adoption.
The court will order mother and father to comply with the case plan outlined by DCS. This may require counseling, drug testing, work with a parent mentor/aide, actively participate in parenting time and any other service DCS believes is necessary to aid the parents in being able to adequately care for their children.
Report and Review Hearing
The Report and Review will occur within 6 months of the Disposition Hearing. The court will assess the parent's progress in removing the barriers to their children’s return home. The children may be returned home at the review hearing if the parent has addressed the safety risks to the children.
Permanency Planning Hearing
A Permanency Planning Hearing will be held within 6 months of removal from the home if the child is under three years of age and one year of removal from the home if the children are over three years of age.
At the hearing the state may request the case plan be changed to severance and adoption or permanent guardianship if the parents are not making progress towards re-unification with their children.
If the court changes the case plan to severance and adoption or permanent guardianship the parents are in jeopardy of losing all rights to their children forever.
Severing a parent's right to their children requires that the state has proven by clear and convincing evidence one of the following grounds after and adjudication (trial) on the issuance of severance:
- Abandonment: the parent has failed to maintain regular contact and reasonable support.
- Willful abuse, neglect, of failure to protect.
- Mental deficiency, mental illness or substance abuse; the parent’s condition renders them unable to discharge parental duties.
- Incarceration or felony conviction, if the felony is of such a nature that it is obvious the parent cannot parent or the length of incarceration is at a minimum more than two years.
- Failure to file a paternity action.
- Consent to adopt.
- Time in care: 9 months if the parents have substantially neglected or refused to follow through on services or 15 months if the parent has been unable to remedy the situation while participating in services.
- Previous Dependency: within 18 months of the return of the children, the children are again removed by the state. Also, the court must find that it is in the children's best interest to terminate the parents' rights. Once a parents' rights have been severed their children are free to be adopted by others.
The state may choose to pursue a Permanent Guardianship rather than severance and adoption. Permanent Guardianship is usually offered in cases involving older children who are placed in the care of a relative or family friend. The permanent guardian is responsible for the children and may not return them to the care of their parent without a court order.
Appealing Findings of Dependency or Severance
A parent may appeal a finding of dependency or severance. An appeal is a request by the moving party to the Court of Appeals to find that an error of law or procedure occurred during the case and therefore the trial court must reconsider its decision.
The Court of Appeals will not reweigh the evidence or take new testimony; it will only review the trial court's record to determine if a mistake occurred. The Court of Appeals presumes that the trial court acted appropriately and will only overrule the trial court if there is a clear mistake of law or procedure.
Department of Child Safety (DCS)
DCS is invested by the state with the power to investigate allegations of abuse and neglect against children.
If DCS removes a child from a parent, a Temporary Custody Notice (TCN) is served upon the parent. Once removed the department has a Team Decision making meeting (TDM) to discuss, with the parents and other family members, the options available.
The department must either return the child within 72 hours of their removal or file a dependency petition alleging that the child is dependent.
A dependent child is a child who does not have a parent willing or able to provide proper and effective parental care and control, a child who has not been provided with the basic necessities of life, such as food, clothing, and shelter, or a child whose home is unfit due to abuse or neglect.
Abuse can include physical, sexual, or emotional abuse.
Neglect means failing to provide for the child’s basic needs to such a degree that there is a risk of harm to the child as a result.
The majority of the Dependency Petitions are filed by the Department, however, in Arizona any interested party may file a petition. We refer to these petitions as private petitions.
Guardian Ad Litem
Guardian Ad Litems are attorneys who are appointed to represent the best interests of the children. They do not advocate for what the child wants but rather what they believe to be in the child’s best interests. In cases with children over 12 years of age, the court may appoint an attorney for the child who advocates for the child’s wishes.
Indian Child Welfare Act (ICWA)
The Indian Child Welfare Act is a federal law which requires that different procedures and standards be utilized if the child is an enrolled member of an Indian tribe or is eligible for enrollment.
Interstate Compact on the Placement of Children (ICPC)
The Interstate Compact on the Placement of Children is a law which requires states to cooperate with each other in cases where children will be placed in another state.
5 Day Temporary Custody Hearing
Law requires that if a parent is contesting the temporary custody of his or her child, the court must set a hearing within 5 days to determine if probable cause exists to believe that the child would be subject to physical or emotional harm if in the parent's custody.
This is a very low standard.
Sometimes this hearing may also be set if parent does not agree with the initial placement of the child, although this is not technically the purpose of such hearings.
Change in Physical Custody Hearing
If CPS files a Motion for Change in Physical Custody ("CPC") and if any party objects, the court may set a hearing to hear from the parties about if the child should be placed in the proposed placement. The hearing could be oral argument or may be contested matter with witnesses and exhibits.
Meeting held outside presence of judge with attorneys, parents, and court mediator. Usually to discuss allegations, services, etc. and see if any agreements can be reached.
Dependency Pretrial Conference
Hearing to tell court whether any agreements were reached at mediation and set trial dates. If parent decides admit or stipulate at mediation then a PTC is usually vacated.
Trial where CPS presents witnesses and evidence to prove allegations in dependency petition. Parents present evidence to refute or disprove the allegations.
Does not occur until dependency finding is made. Usually conducted at same time the court makes dependency finding, such as at the PPH/PPH or IDH rather than as a separate hearing. DCS tells court what the case plan for the family will be and what services will be offered to parents and children. Sometimes this hearing may be a contested matter with evidence and witnesses if the department wishes to not offer services and proceed straight to severance.
This hearing may be set by the court to hear testimony and evidence regarding a particular contested issue before the court.
An in-home intervention is when DCS files a dependency petition but leaves the children in the custody of the parent while offering the parent services. If the parent successfully completes the services, the dependency is dismissed before the adjudication. Client must agree and court must approve the intervention.
This is not a formal conference but rather the attorneys, client, and DCS arrive early to discuss the case before the initial hearing.
In-Home Report & Review or in Home Review
This hearing is conducted 3 - 6 months after initial in home intervention hearing to check on status of case and services. If client does not comply with services, children may be removed and department will file a motion to convert matter into a dependency case.
In-Home Status Hearing
This hearing may be set for various reasons during an in-home intervention so court can be updated on issues in the case.
Initial Dependency Hearing
Normally only occurs if one or both parents do not appear at the PPC/PPH. Same basic procedure as PPH/PPH hearing above. Advised of rights etc. Sometimes continued hearing (CIDH) set if department does not have service on client or if ICWA applies and tribe needs to be notified.
Initial Permanent Guardianship Hearing
This hearing is held if the court directs the department to file a Guardianship motion and must be held within 30 days of the Permanency Planning Hearing. The Court advises client of rights, which are included on Form 2. If service is proper and client does not appear for this hearing, he or she will be defaulted and permanent guardianship granted after brief testimony. Client may agree to the permanent guardianship, be defaulted, or contest the permanent guardianship and a mediation and pretrial conference be set.
Initial Severance Hearing
This hearing is held once a severance motion or petition is filed and must be held within 30 days of the Permanency Planning Hearing. The court will advise the parent of his or her rights in the severance matter, which are included on Form 3.
If service is proper and the parent does not appear for this hearing, the court may move forward without the parent present. This means the Department will present evidence and/or testimony to the court it believes supports the motion to terminate parental rights. The parent's lawyer will be present at this hearing, even if the parent is not there. A possible result for a parent not attending this hearing is the parent may be "defaulted" and his or her rights could be terminated after brief testimony from the department.
If the parent appears at this hearing, the client can contest the severance and request adjudication (trial), or can agree to not contest the severance.
Motion Hearing/Oral Argument
This hearing may be set by the court to hear oral argument or evidence regarding a Motion filed by one of the parties.
Order to Show Cause Hearing
This hearing may be set by the court for a party to appear to show cause why they did not comply with an order of the court. Very rarely occurs in these matters.
Permanency Planning Hearing
Held approximately 10-12 months after the child comes into DCS custody. DCS must tell court what permanent plan for child will be. If the parent is complying, the plan may stay Family Reunification.
If they are not, then DCS may ask for case plan to be changed to severance and adoption, the APPLA, or Permanent Guardianship. Sometimes this is held as a contested hearing so that parent and department can provide witnesses and exhibits to convince the court of appropriate plan.
Permanent Guardianship MediationPermanent Guardianship Mediation occurs outside the presence of the judge. The purpose is to determine if agreement can be reached about the permanent guardianship.
Permanent Guardianship Pretrial ConferenceHearing to set permanent guardianship trial dates. Sometimes testimony is taken at this hearing if client agreed to the permanent guardianship at the mediation or pretrial conference.
Permanent Guardianship Trial
A Permanent Guardianship Trial is a trial for DCS to prove the allegations in the permanent guardianship motion.
Permanent Guardianship is granted wither through agreement or trial. The court will set a one year review hearing to monitor the permanent guardianship. Appearances are always waived for the one year review.
Preliminary Protective Conference
Conference held outside presence of the judge with attorneys, parents, DCS case manager, and court facilitator. The purpose is to attempt to reach agreements and discuss services, etc. These conferences are sometimes not set in private petitions.
Preliminary Protective Hearing
Also referred to as the Review of Temporary Custody hearing; it is held immediately after a Preliminary Protective Conference concludes.
The judge advises parents of rights in case and provides copy of Form 1 which explains their rights. These include:
- Right to counsel if they are indigent
- Right to trial on the allegations in the dependency petition
- Right to cross-examine witnesses
- Right to compel witnesses to testify for them through the use of the subpoena power
During this hearing, the parent enters their position regarding the dependency petition. The parent may stipulate (agree) to the dependency based on a specific reason, may deny the allegations and proceed towards a trial.
Report & Review Hearing
The court is required by law to have a hearing at least once every six months to inquire about the status of the children and the compliance of the parents with services. These can occur more frequently, if necessary.
Review of Hospitalization Hearing
Law requires that if a child is placed in a locked Residential Treatment Center (RTC), the court must have a review hearing at least once every 60 days.
Usually report will be prepared by the placement rather than DCS to update court on the child’s status. The hearings are sometimes held without appearances if placement and child are stable.
Severance Pretrial Conference
Hearing to set severance trial dates. Sometimes testimony is taken at this hearing if the client decides to no longer contest at mediation or the Pretrial Conference.
The State attempts to prove the allegations in the severance motion by calling witnesses and presenting evidence. The parent, through their attorneys, also has the right to call witness and present evidence. At the end of the proceedings the judge will determine if the State has proven the severance grounds by clear and convincing evidence. .
This hearing may be set by the court for various reasons to address issues that have arisen in case.