Home > Working With the Courts in Child Protection > 4. Overview of the Civil Child Protective Court Process

Working With the Courts in Child Protection

Author(s):   U.S. Department of Health and Human Services Feller, J. N., Davidson, H. A., Hardin, M., Horowitz, R. M.

Year Published:  1992

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You are in section: Table of Contents Preface Acknowledgments 1. Overview of the Manual 2. Child Maltreatment: History and Overview of the Juvenile Court 3. The Court System and Child Abuse and Neglect 4. Overview of the Civil Child Protective Court Process 5. The Criminal Court Process 6. Overview of the Domestic Relations Court Process 7. Other Court Actions Involving Maltreated Children 8. Pretrial Caseworker Preparation 9. Proving Child Maltreatment in Court 10. Testifying in Court 11. The Child as a Witness Glossary Notes Selected Bibliography Other Resources

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4. Overview of the Civil Child Protective Court Process

Jurisdiction

Juvenile and family courts, as well as many general trial courts, have jurisdiction (i.e., authority to make decisions) over civil child maltreatment cases. However, only children who are identified in a State's law as needing the court's protection may become the subject of a child protection petition. Each State has its own terms and definitions in the jurisdiction provisions of its law.

State laws vary widely in the terms they use, as well as in the definitions they apply to those terms. To obtain court jurisdiction over a child, for example, the caseworker must be able to show that the child is: abused, battered and abused, abused or neglected, sexually abused, maltreated, dependent, deprived, abandoned, uncared for, in need of aid, in need of services, or in need of assistance. Moreover, it should be noted that conduct which may have to be reported under a State's reporting law will not necessarily be sufficient to give jurisdiction to that State's juvenile court. Before bringing a child protection proceeding, the jurisdiction requirements of the particular State's law must be consulted.

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The Intake Process and the Petition

A civil child protection proceeding is initiated by filing a document called a petition with the court. The petition contains the essential allegations (charges) of abuse or neglect that make up the petitioner's complaint about a particular child's situation. It does not include all of the detailed facts available to the petitioner to support these allegations. Such supporting facts are evidence, which will be presented to the court later, at the trial stage of the proceedings.

A petition is usually filed at the initiative of a CPS or child welfare caseworker. Some States, however, also permit private citizens or other public officials (e.g., physicians, hospital personnel, and police officers) to initiate petitions, but may impose certain screening requirements in those cases.¹⁹

A crucial task in helping an attorney draft a petition is to explain in descriptive language the actual treatment of the child so that it meets with the legal definition of abuse or neglect in that State. In other words, the law says what the subject matter is (i.e., abuse or neglect) and how the main characters must have acted in order to have broken the law (e.g., hurting a child or failing to feed a child). After consulting the law, the attorney must construct a real-life story, identifying the characters and describing the events and the setting (i.e., the facts), based on the caseworker's documentation of the case.²⁰

Petitions should not repeat exactly what the law states. For example, a petition should not say, "The father committed a willful act by significantly impairing his son's physical health." While the petition may use some of the language of the appropriate law, merely repeating these words without relating them to the facts of the case does not alert the judge or the parent(s) to what will be proved at trial.²¹

Lawyers' opinions differ greatly on whether a petition should have only the most significant points or be as detailed as possible. Petition length will vary depending on the complexity of a particular case and the local policy and practice.

Long petitions may be useful as a guide to gathering and presenting evidence and serving as a checklist in preparing for trial. They also give the judge a colorful and complete picture of the family's problems.

However, long petitions often contain extra details that cannot be proven later at trial. If there is no evidence available to support a fact at the hearing, the judge will have to dismiss certain portions of the petition, making the case seem unreliable. When the petition has language such as, "Mrs. Jones has repeatedly beaten Mary with excessive force, causing severe welts and bruises," petitioners are always free to present evidence in court of specific supporting facts, as long as the rules of evidence are not violated. (See "The Rules of Evidence.") For these reasons a short petition is often preferred. In preparing a short petition, the challenge lies in recognizing and illustrating each and every legal element while avoiding the extra details. Any mistakes in this process will result in either dismissal of the petition or having it sent back to be amended.²²

To begin drafting the petition, the attorney should first consult State law. Using one State's definition of abuse, listed below are all the elements of the statutory definition:

• Any willful act
• resulting in any physical, mental, or sexual injury
• that causes (or is likely to cause) significant impairment
• to the child's physical, mental, or emotional health.²³  An attorney might be faced with a case similar to the example below.

On October 17, Ed Jackson threw his 3-year-old stepson, Billy Jackson, against a wall, causing him to pass out. He was taken to Children's Hospital where Dr. Snyder diagnosed a concussion. According to the doctor and to earlier clinic reports, Billy is significantly developmentally behind for his age group, and he was slow to walk and talk. The doctor found many bruises in different stages of healing, indicating that Billy had been battered many times before.

Mr. Jackson told the attorney that he did not intend to hurt Billy, but that he was just trying to get him to act his age, to walk faster, and to stand straighter. Mr. Jackson said that is how he himself learned to be tough as a child. Billy's two older stepsisters, Tina (age 8) and Dinah (age 10), were placed in foster care a year ago, after having been found to be abused. Billy's day care provider states that he is sometimes bruised and crying when he is dropped off.

The attorney should compare the facts of this case to the legal definition of abuse:

• Was there a "willful act?" Yes. The act of throwing Billy against the wall was willful (not accidental) because Mr. Jackson chose to do it (he did not have to). Even if he did not intentionally hurt Billy, he did throw him against the wall on purpose.
• Was there a physical, mental, or sexual injury? Yes. Billy suffered a concussion, which is a physical injury.
• Was the physical injury caused by the willful act? Yes. The doctor will testify that the concussion was probably the direct result of Mr. Jackson throwing Billy against the wall. Mr. Jackson may admit that as well.
• Did the physical injury significantly impair Billy's physical, mental, or emotional health? Yes. A concussion is clearly a significant impairment of physical health. The attorney is now ready to write the petition. The extent of the caseworker's involvement in this process varies from State to State.²⁴

Once a petition has been prepared, the intake process provides a mechanism by which the courts evaluate a petition to determine whether its allegations are sufficient (from a legal standpoint) for it to proceed. Some courts screen all petitions they receive; others screen only those brought by private citizens. The current trend is for courts to rely on the agencies' prepetition investigative and screening processes, and, accordingly, to expedite or even forego the intake process.²⁵

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Shelter Care, Detention, or Temporary Custody Hearing

The first court appearance in a civil abuse or neglect case usually takes place after the petition has been filed (or if the child was removed under emergency circumstances, within a few days after he/she was taken into custody). The precise deadline for this hearing depends upon State law.

Although this hearing is given a variety of names depending on the State, it generally serves the same purpose everywhere: to determine whether the child should be temporarily placed outside his/her home pending the ultimate disposition of the case. If the child is already in emergency out-of-home care, this hearing is used to decide whether this temporary custody arrangement should be continued.

All legally interested parties are notified of this hearing when they are served with a copy of the petition. This ensures that everyone involved in the case (particularly the parent) is informed of the specific allegations made and is aware of the date and time for which the hearing is scheduled.²⁶

This hearing is one point at which counsel are often appointed for indigent parents and some type of representation (e.g., a guardian ad litem or court-appointed special advocate) may be appointed for the child.

Reasonable Efforts Determination

Federal law requires that, before a State may receive Federal financial support for the costs resulting from a child's removal from home into foster care, a judge must determine that reasonable efforts have been made to keep the family together. Similarly, placement may not be continued with Federal support without a finding by the judge that such efforts have been made to reunite the family.²⁷ In many States, such reasonable efforts findings have been made mandatory under State law whenever a child is placed or continued in foster care.²⁸ The purpose of this requirement is to encourage State and county agencies to provide parents with the services they need to improve their ability to care for their children, thus preventing or minimizing the time that children spend in foster care.²⁹

Emergency and Temporary Protective and Removal Orders

Depending on the danger or harm to the child, the judge may make a temporary protective or removal order. When emergency custody has already been initiated, the court will either ratify the child's removal or return him/her home. Of course, any of the removal decisions by the court should be contingent upon its explicit finding that the required reasonable efforts were made in that particular case.

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Pretrial Conferences and Negotiating Case Settlements

Although it is not conducted in many courts, a pretrial case conference serves a number of critical purposes in a civil child protection proceeding. Since a child's future hangs in the balance during the pendency of such a proceeding, a fair, thorough, and speedy resolution of the case will always be in the child's best interests. The pretrial conference is designed to promote such a resolution by providing an informal forum for settlement negotiations. If the parties can agree that the child has been abused or neglected (stipulate to an adjudication), further time-consuming court proceedings become unnecessary.³⁰ At the same time, implementation of the child's case plan can be expedited, and additional traumatic division among family members may be avoided.

However, settlement is not always desirable. Some children may feel that their disclosures have not been believed or taken seriously, that they were wrong to tell, or that their abuser is "getting away with it." Depending on the circumstances, children may also feel vulnerable to further abuse. Settlements may have a downside for parents, too. A parent who vehemently denies the abuse or neglect may feel pressured into accepting a settlement that, either explicitly or implicitly, acknowledges his/her responsibility.

Mediation may be particularly appropriate at this point to assist the parties in reaching an agreement nonadversarily.³¹

Regardless of how cases are settled, case resolution agreements must be properly drafted to create an adequate record for future court involvement, if it becomes necessary. In addition, in order for the family's child welfare agency case plan to be effective, the parties should agree on, not only the outcome of the case, but also on certain material facts underlying the petition as well. Parents, children, and the State or county child welfare agency need proper representation at this stage in the proceeding to ensure that no one is coerced into an agreement, and that the child's interests are reflected in the negotiations.³²

If settlement cannot be achieved, the pretrial conference is still important to expedite the coming trial and to keep its length as short as possible. The conference provides an opportunity for identifying and clarifying trial issues, resolving discovery disputes, and encouraging the exchange of information to avoid surprise at trial.³³

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Discovery

Before trial, parties in any civil court proceeding are permitted to conduct what is known as discovery. This process is designed to assist in preparing for trial by providing access to a variety of information sources. In most States, the parties to a civil child protection case will be allowed access to agency records (although laws generally permit the name of the original reporter of abuse or neglect to be omitted). Under certain circumstances, some sensitive material in these records (e.g., the child's psychiatric evaluations or reports of his/her therapy sessions) may be considered confidential and not accessible if it is not directly relevant to whether maltreatment occurred. (See "Privileged Communications.")

Although not often used, other, more formal discovery methods may be available in many States. For example, one party may submit written questions (interrogatories) to another that must be answered within a specified time or may orally question another party or a witness prior to trial (depositions).

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The Adjudicatory Hearing

Once pretrial matters have been resolved, the adjudicatory hearing or trial should ideally begin soon after. At this stage of the civil court process, based on the evidence presented at trial, the judge must decide whether the child has been abused or neglected. Each party will question his/her own witnesses; cross-examine opposing witnesses; and may present other evidence in the form of documents, records, photographs, or videotapes. (See also "Types of Evidence" and "Direct, Cross, and Rebuttal Examination.")

The attorney for the party who has filed the petition, usually the CPS agency, must present enough evidence to convince the judge that the abuse or neglect did, in fact, occur. Those in the legal system refer to this responsibility as the burden of proof. In a civil case, depending on the State, this burden is either to show by a preponderance of evidence or by clear and convincing evidence that the abuse or neglect happened (as opposed to a criminal case where the guilt of a given individual must be established by proof beyond a reasonable doubt). (See the section on how much evidence is required in a subsequent chapter in this manual entitled "Proving Child Maltreatment in Court.") To determine whether a party has met his/her burden of proof, the trier of fact will not merely take into account the amount of evidence presented on each side (e.g., how many witnesses), but will also consider the quality of that evidence (e.g., how credible and/or persuasive the witnesses are).

Increasingly, courts (through State law or judicial system rules) are being required to complete these hearings within a given period of time from the filing of the petition or the removal of a child from the home (e.g., 30 days). In some additional States, a judge's written factual determination, known as findings of fact, must also be made within a specific period of time.³⁴ The purpose of these requirements is to avoid case resolution delay that may be harmful to the child.

If the judge finds at the adjudicatory stage that maltreatment was not proven, he/she will dismiss the case. This means that the legal proceedings are terminated. In that situation, the child welfare agency has no leverage from the legal system to continue the case plan; however, the case plan may continue if the parents cooperate voluntarily.

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The Disposition Hearing

If the judge determines that abuse or neglect has occurred, the trial will proceed to the disposition hearing. At this stage of the civil court process, the judge decides who will have custody and control over the child, and may, in some jurisdictions, have the authority to issue certain conditions on placement or instructions to the parties. In most States, the court has the authority to require parents to participate in treatment and counseling or to cooperate with agency caseworkers as conditions of keeping the family intact.³⁵ This judicial authority depends upon a prior finding of abuse or neglect, since without such an adjudication, the court does not have jurisdiction (i.e., power over the parties) to order these remedies. Witnesses may be presented and cross-examined at the hearing, and written agency reports, with recommendations, may be submitted.³⁶

Predispositional Studies, Evaluations, and Reports

The disposition of a case is based in part on a child welfare agency's report and recommendations. In some States, dispositional recommendations are presented at the end of the adjudicatory hearing. In many States, however, the court will direct the agency to conduct a posttrial study of the family and prepare its report and recommendations accordingly. When a predispositional study is ordered, the judge may provide guidelines for the agency by, for example, requiring that certain options be explored or that a full explanation for its recommendations be provided. Generally speaking, however, the predispositional study should always present and fully explore all feasible dispositional choices for the court's consideration.³⁷

The question of confidential or privileged information may arise in the context of predispositional studies, evaluations, and reports. These studies or reports may contain information that is normally considered confidential (e.g., conversations between patient and therapist). When this information is obtained specifically for a court-ordered evaluation, privileges will not apply. However, in other types of predispositional studies and reports that are prepared by a party (e.g., the agency), some privileged information may not be allowed as evidence (although the rules of evidence are generally more relaxed at the disposition stage than at adjudication).

Renewed Consideration of Reasonable Efforts

If the child is to be removed from the home at the disposition phase of the case, the judge should consider at the disposition hearing whether reasonable efforts have been made to prevent the removal. When a child has already been removed, the judge should make a finding as to whether reasonable efforts were made to reunify the family.³⁸

Case Disposition Options

The judge has a number of dispositional options, usually delineated by State law, once the court has found that the child was abused or neglected.

Protective Supervision of Child in Own Home

A parent, even after an adjudication of abuse or neglect, may be permitted to retain custody of his/her child, under certain conditions and with supervision. Sometimes a child welfare agency will be given legal custody of the child with the understanding that it will exercise its discretion as to whether the child may reside in the parent's home. With all of these options, the court will keep authority over the parties involved or will delegate its supervisory powers to the agency. The court or agency then has a continuing responsibility to ensure that the terms of the protective supervision order are being met. The regularity and specific conditions of supervision may vary significantly from State to State.

Placement of Child in Substitute Care

The judge may decide to remove the child from his/her home. In some States, a court can only give custody to a social services agency, which will then place the child with a relative, foster family, group home, or residential institution. In other States, the court may give custody directly to a specific person or institution, such as a relative or foster home.

Placement with a relative (also known as kinship care) has become increasingly common in recent years. A child who can remain with his/her extended family will generally experience less disruption and trauma than if placed with strangers. Kinship care may also preserve important cultural and community ties that would otherwise be disturbed.³⁹ The Supreme Court has held in the Youakim ⁴⁰ case that a relative who is licensed, certified, or approved as a foster parent is entitled to the same Federal foster care payments as other foster parents.

If the child is to be removed and placed in substitute care, the dispositional order should specify the type, location, and degree of restrictiveness of placement, as well as any other appropriate conditions for placement. Parental visitation or other contact with the child should also be addressed by the court.⁴¹

Protection Orders Against Alleged Perpetrators

In most States, the judge may also issue an order of protection or restraining order to control the conduct of the accused abuser or any other person who might harm the child or interfere with the disposition. For example, such orders could require that a certain person refrain from abusing the child, not enter the child's home, or even have no contact whatsoever with the child.

Parental Visitation

If the child is placed outside the home, parental visitation is generally permitted. Unless there is a good reason for these visits to be supervised, parent'child contact will typically be frequent and unsupervised. However, supervision may be necessary to protect the child or to observe the interaction between parent and child.

If supervision is ordered, parents' visits will take place with an adult third-party present. While agency staff members are most commonly used to supervise visits, other reliable adults (e.g., relatives, guardians ad litem, or CASA's) may also occasionally take on this responsibility. Some judges routinely specify the type and frequency of visitation, while others usually leave visitation to the discretion of the agency.

Termination of Parental Rights

The most drastic option that may be available to the judge at the disposition stage (depending on State law) is to permanently terminate a parent's rights to his/her child, making the child available for adoption. This option is not often available or used at the disposition stage, except in unusually severe and hopeless cases. In many States, parental rights may only be terminated by filing a separate petition after the disposition of the abuse or neglect petition. In this situation, a separate hearing is held. The grounds for terminating parental rights must be established at this separate hearing by clear and convincing evidence (see "Termination of Parental Rights Hearings").⁴²

Other Permanent Placements

Where termination of parental rights is not appropriate (e.g., where a suitable relative may want to become the child's permanent caretaker, where an older child does not want to be adopted, or where a long-term foster parent does not want to adopt), the judge may order some type of permanent placement to ensure the child's continuity and stability. While in most cases adoption is preferable for a child who will not be returned home, alternatives such as guardianship and long-term foster care are available as choices to promote permanency.

Long-term foster care is generally used in cases where the child has become integrated into his/her foster home and cannot be adopted for whatever reason. The foster parent may then agree to keep the child in that foster home until the child reaches the age of majority. Such an arrangement provides the child with more security than he/she could expect in temporary foster care. However, it does not provide the child with the permanence that is achieved through return home or adoption. Guardianship or custody by a relative or former foster parent, which authorizes broad decision making powers with respect to the child, is another dispositional alternative. By eliminating or minimizing the involvement of the agency, guardianship or custody also introduces some degree of continuity into the child's life.

It is important to note that the availability and impact of these permanent placement options vary widely from State to State.

Dismissal

Even where abuse or neglect has been found, the judge might dismiss or close the case at disposition, meaning that no further legal action will be taken on that case. This may occur when the judge believes, for whatever reason, that the abuse or neglect is highly unlikely to recur (for example, the abuser has moved out of the home or circumstances indicate that the maltreatment was an isolated incident).

Court Approval of Case Plan

Federal law requires that a public child welfare agency case plan be developed for every foster child whose care is federally subsidized.⁴³ Each case plan must include a description of the child's placement and a scheme for providing services to the child, the biological parents, and the foster parents.⁴⁴ The child's health and education needs must be specifically addressed in this plan. In some States, the case plan must be submitted to and approved by the court.⁴⁵

The distinction between a case plan and a predisposition report is an important one. The report is prepared by the agency after investigating the family and should explore all alternatives thoroughly to help the court arrive at its decision. A case plan, however, specifies what actions are required of all of the parties involved to modify the conditions causing the need for placement, and when they are to be completed.⁴⁶ In States where the case plan must be submitted to the court for approval, the judge should hold a hearing at which the plan may be accepted, rejected, or modified.

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Periodic Review

Every State requires State courts, child welfare agency panels, or citizen review boards to hold periodic reviews to reevaluate the child's circumstances if he/she has been placed in foster care. The purpose of these reviews is to ensure that a child's placement continues to meet his/her needs and to avoid the problem of foster care drift by planning for the child's future and setting deadlines and timetables.⁴⁷

Federal law requires that for a State to receive certain Federal funds, a child's case must be reviewed at least every 6 months after he/she is placed in foster care to determine whether his/her placement is still necessary and appropriate, whether the case plan is being properly and adequately followed, and the degree of progress that has been made toward reunifying the family. A target date for the child's return home, adoption, or some other permanent placement must be set at these reviews.⁴⁸

Federal law also requires that within at least 18 months from the child's placement into foster care, and continuing at regular intervals, a special hearing must be held to establish a firm permanent plan for the case (i.e., whether the child is to be returned home, continued in foster care for a specified period, placed for adoption, or continued in long-term foster care).

Although this hearing is referred to as a dispositional hearing in the actual text of the Federal law, it should not be confused with the court's initial disposition decision after adjudication, which is usually known as the dispositional hearing in most States. (See "The Disposition Hearing.") The 18-month hearing, unlike the 6-month review, must be held by the court or a court-appointed or approved body. It also must be conducted with relative formality.⁴⁹

Even after the 18-month hearing, reviews of the child's case will continue to be held every 6 months for as long as an agency maintains custody or control over the child (usually until the child is returned home, adopted, or reaches the age of majority).⁵⁰ Such 6-month reviews may also be conducted by administrative panels or citizen review boards.

These Federal rules for case review are minimum requirements. Some States have more rigorous procedures than those required by Federal law. For example, in some States the hearing to establish a permanent plan must be conducted within 12 months (rather than within 18 months).

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Termination of Parental Rights Hearings

As noted above, where a child has been found to have been abused or neglected, his/her parent's rights to that child may be terminated by the court. (See "Termination of Parental Rights.") Termination of parental rights has a profound effect on the lives of both parent and child: the child will be free for adoption without the consent of his/her parents, the parent will no longer have the right to any contact with the child, and in most States the parent will not have any further obligation to support the child. For a child who cannot return home, termination of parental rights is generally sought in order to provide the child with a permanent home through adoption or guardianship.⁵¹

General Review of Statutory Grounds⁵²

Each State has its own grounds for terminating parental rights. Generally, however, States agree that their courts should examine whether it is appropriate to return the child to his/her parent within a reasonable period of time and whether termination of parental rights is in the child's best interests.

In considering the advisability of returning the child, courts apply the precise grounds set forth in the State law. In most cases, these laws include some or all of the following factors:

• extreme parental disinterest;
• parental failure to improve the conditions that led to the child's removal;
• extreme or repeated neglect or abuse;
• parental incapacity to care for the child; and
• extreme deterioration of the parent'child relationship.

Extreme parental disinterest may be found by a judge not only in situations where the parent has literally abandoned the child, but also where the parent fails to communicate with or visit the child, says he/she does not care about the child, or is willing to give up the child. A parent may also exhibit disinterest when he/she repeatedly and needlessly leaves the child with others for long periods of time, fails to make efforts (such as cooperating with the agency, participating in treatment, and accepting services) to have the child returned, and fails to financially support the child although able to pay.

The judge should only find that a parent has failed to remedy the conditions that caused the child's removal if:

• the case plan was properly developed and implemented by the agency; and
• the parent failed or refused to take the steps required in spite of the agency's diligent efforts.

Parental incapacity may also convince a judge to terminate parental rights. However, even if a mentally or physically disabled parent (including those addicted to drugs or alcohol) cannot care for his/her child, termination will not generally be granted without evidence showing that agency reunification efforts (e.g., through providing drug treatment) have failed. It is important to note that the mere fact of parental disability should not be enough to terminate parental rights; the judge will need proof that this disability actually prevents the parent from adequately caring for his/her child (diagnosis) and that the parent is unlikely to improve in the future (prognosis).

Parental rights may also be terminated when a parent repeatedly or severely abuses or neglects his/her child. Isolated acts of abuse will not generally justify termination, since intervention and treatment may succeed in reforming the parent, making termination unnecessary. Prolonged and severe patterns of abuse, however, may warrant a decision to terminate. Some patterns, or even single acts, of physical or sexual abuse are so outrageous as to make reform of the parent unlikely, and in such cases rehabilitation efforts may not be required before parental rights are terminated. For example, a parent who has killed one child might lose the parental rights to siblings without rehabilitative efforts being required.

In some States, when the parent'child relationship has deteriorated to an extreme degree, the judge may also decide to terminate parental rights. Past abuse or neglect may have irreparably damaged the bond between parent and child, making reunification impossible. Usually, however, a judge will not terminate parental rights unless there are additional indicators that the child cannot be returned home safely (e.g., those other factors discussed above). In cases based on the breakdown of the parent'child relationship alone, judges are more likely to seek some alternative permanent placement for the child.

Almost all States require proof not only that sufficient grounds exist to show that the child cannot be returned to the parent but also that termination is in the child's best interests. Termination will further the best interests of the child if it will result in a more permanent or stable placement for the child. This is usually established for the court by showing that if parental rights are severed, the child's chances for adoption or permanent legal guardianship are good and that adoption is the best plan for the child rather than other options, such as guardianship or long-term foster care.

It is important to note that the purpose of terminating parental rights is not simply to improve the child's living conditions. Thus, the court should not merely weigh the biological parent's lifestyle or financial status against that of a prospective adoptive parent, if there is one. Rather, the court's inquiry should focus on whether it will be possible to safely return the child home within a reasonable time, regardless of whether the child might be "better off" in the custody of someone else.

Standard of Proof

Given the serious consequences of terminating parental rights, the Supreme Court in the Santosky ⁵³ decision has held that evidence that supports termination must be clear and convincing (rather than merely a preponderance of the evidence). This burden of proof is higher than that required in a civil abuse or neglect case where termination is not sought, because the result in a termination case is permanent.

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Appeals

As with any type of proceeding, once a civil child abuse or neglect case has been decided by a judge, it may be appealed by any of the parties (including the child). The appellate process is an important part of our legal system and protects against judicial mistakes and abuses of discretion. Unfortunately, the mechanics of making an appeal are time consuming. The delay may postpone permanent placement for the child, interfere with implementing the case plan, or unjustifiably intrude into family integrity. In some States, the appellate process is expedited for child protection cases. In addition, many States provide that the case plan may proceed, and a court ordered placement be continued, while the appeal is pending.⁵⁴

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Summary of Civil Child Protection Court Process

Because the civil child protection court process varies so widely from State to State, the flow chart following this page illustrates just one possible example of how a child maltreatment case might move through the courts. Some States may not require all of the stages or permit all of the options included in the chart. Others may require stages or permit options that are not included in the chart. Options or stages that differ according to State include:

• Emergency Removal: Not all States allow children to be removed from their homes without court permission.
• Filing Petition: In some States, the petition is filed at the same time that the emergency removal hearing is held.
• Pretrial Conference: Many States do not require pretrial conferences.
• Periodic Reviews: While some States require all reviews to be conducted by the court, the chart depicts a State where the initial review is performed internally by the child welfare agency. Thus the first court review shown on the chart is essentially a permanency review to determine the ultimate direction of the child's case. If, after review, the child is returned home, some States will not require any further reviews to be conducted. Many States will require continued reviews, however, when the child has been placed in long-term foster care.
• Termination of Parental Rights: In some States, a petition to terminate parental rights may be filed at any time after disposition. The chart depicts only the more common practice of filing for termination of parental rights after the permanency review.
• Post-Termination Review: Not all States require a review hearing after parental rights have been terminated. In some States, as illustrated in the chart, a review is held after the termination of parental rights to determine what progress has been made in achieving a permanent placement for the child.

Figure 1 Court Process Flowchart

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You are in section: Table of Contents Preface Acknowledgments 1. Overview of the Manual 2. Child Maltreatment: History and Overview of the Juvenile Court 3. The Court System and Child Abuse and Neglect 4. Overview of the Civil Child Protective Court Process 5. The Criminal Court Process 6. Overview of the Domestic Relations Court Process 7. Other Court Actions Involving Maltreated Children 8. Pretrial Caseworker Preparation 9. Proving Child Maltreatment in Court 10. Testifying in Court 11. The Child as a Witness Glossary Notes Selected Bibliography Other Resources

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Updated on March 1, 2010