The Process of an Ordinary DCS D&N Case

Your kids are removed by DCS. What happens next? In cases where the allegations are Dependency and Neglect (parent is unfit, unwilling or unable to have custody) and NOT severe abuse the process usually goes like this.

 

DCS files a petition for custody (or to transfer custody to another person). Parents are served a copy of the petition and given a court date.

Usually at that first court date parents will be asked if they have attorney or want the court to appoint attorneys for them. If they want attorneys appointed usually parents have to fill out a form detailing their financial situation or the judge questions the parent about their financial situation. The judge decides whether or not to appoint attorneys and will usually give another court date so the attorneys can get up to speed. At the end of this hearing you SHOULD have an attorney appointed to you and be working ACTIVELY to contact them OR you should be going out to hire one a.s.a.p.

 

Usually the next court date is the preliminary hearing. At this hearing DCS ONLY has to prove that they had “probable cause” to believe the allegations they have made against you. They do NOT have to actually prove the allegations at this point. Which means DCS almost always wins at this stage because they put on a caseworker who repeats whatever is in the petition and if you can’t basically PROVE them wrong they win the preliminary hearing. Chances are your attorney will NOT want you to testify because if caseworker says one thing and you say the opposite DCS is still going to win at this stage. Also DCS usually has to put on at least one witness so you learn something about their case and your attorney gets to lock that witness into their testimony.  WHY would your attorney want to SHOW DCS your case or lock you into testimony? Sometimes your attorney may want to waive the preliminary hearing. For example if you have criminal charges your attorney may not want to take the chance of DCS calling YOU to testify and asking you questions the answers of which would damage you in your criminal case. And so your attorney may want to waive the preliminary hearing. At the end of the hearing or after you have waived the hearing the judge will usually give another court date for what is called an “adjudication”.

The adjudication is the single most important hearing in your case. At this hearing DCS has to prove the allegations (not that they had cause to believe) by clear and convincing evidence. The Rules of Evidence apply which limits the sort of proof that DCS can put on. For example if the caseworker tried to testify that somebody, somewhere, at some time told the caseworker something bad about you, your attorney can object and that testimony, (which in most cases is hearsay) should not be allowed unless it fits into one of the hearsay exceptions. All of which means that if DCS wrongfully took your kids this is your best chance to get the kids back because if DCS doesn’t prove the allegations then the court should return the kids to the parent. If the court finds that DCS did prove the allegations the judge can immediately hold a disposition hearing or set another date for disposition. Most of the time the judges in my area go ahead and do the disposition at the adjudication. Disposition simply means determining WHO is to have custody of the kids. If nobody else has filed an Intervening Petition then usually the judge has two choices. 1. He/she can do what DCS is asking for (give DCS custody or give custody to the person(s) DCS is trying to transfer custody to). OR 2. give the parent custody.  The judge CAN find that the child was dependent and neglected but that the parent has “remedied” the conditions which led to removal (usually involves the parents doing whatever is required of them in the permanency plan). So at the adjudication your attorney could have TWO strategies/arguments the first being “DCS can’t prove their case” and the second being “Even though there was cause for removal my client has remedied the conditions which led to removal so the court should return the kid”. I have had cases where I used BOTH. After this hearing usually DCS drafts the order and circulates it to all the attorneys so they can check to make sure it accurately reflects what happened in court. For the attorneys when reviewing the order it is not a question of “was the judge wrong”. Instead the question is ‘does the order accurately reflect the proof offered and what the judge did”. When the attorneys give their ok the order goes to the clerk for the judge’s signature. When the judge signs the order, the order is “entered” (filed) and the time to appeal begins to run. You can appeal an adjudicatory order to the Circuit Court for a brand new hearing but usually you HAVE TO appeal the order within ten (10) days of its entry so if you want to appeal it is important at this point to stay in contact with your attorney so you know WHEN the order is entered. If you do not appeal the order then the order is FINAL and you cannot later argue anything that was decided at the adjudication.

From the filing of the petition to the end of the disposition (whether at the adjudication or a later date) is called Phase I or the disposition phase of the case. From here the case goes into “review” mode.

 

Basically in the cases where DCS has custody after Phase I is complete the court will schedule “review” hearings usually three or four months apart. In these hearings the court is usually going to want to hear about how the children are doing and if the parents are doing the requirements of their permanency plans. I have discussed in more detail what a permanency plan is but the simple definition is it spells out what the parents have to do to get their children back. At this point in the case unless you have appealed the adjudication you are not going to be able to talk about how DCS was wrong to take your kids. Instead your focus should be on talking about (and DOCUMENTING) how you have done everything required on the permanency plan. And if you haven’t then it is NOT your lawyer’s fault that the court won’t return your kids. If you do your permanency plan requirements eventually in most case DCS will agree, or even recommend, a Trial Home Placement (THP).  The kids will be placed in your PHYSICAL custody for usually 75 to 90 days and if NOTHING goes wrong at the end of that period legal custody of the kids will be returned to you. If you do not do your permanency plan requirements then usually in most cases at some point DCS will file a petition to terminate (TPR) your parental rights to free the kid up for an adoption. This review period is called Phase II or the review phase of a case.

If DCS files a petition to terminate it must be served on the parent. Usually the first hearing of a TPR is called a TPR 1st hearing. At this hearing the court is going to ask about attorneys for the parents just like the court did in the first hearing of the D&N case. The Court will set a later date for trial. After trial an order is going to be entered much like what happens at the adjudication. It can be appealed to the Court of Appeals by filing a Notice of Appeal with the Court of Appeals within thirty (30) days of the entry of the TPR order.