13.3 Court Proceedings Relating to Abuse and Neglect

• Library: Juvenile Law and Practice in Virginia (Virginia CLE) (2018 Ed.)

13.3 COURT PROCEEDINGS RELATING TO ABUSE AND NEGLECT

13.301 In General. In the late 1990s, changes in state and federal law radically transformed the requirements and best practices for handling

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child dependency cases in the courts. "Child dependency cases" include the following:

		1.	Child abuse and neglect;
2.	Children at risk of abuse or neglect;
3.	Children who are the subject of a petition for approval of an entrustment agreement or for relief of custody;
4.	Foster care review;
5.	Permanency planning;
6.	Termination of parental rights; and
7.	Children who are placed in foster care as part of a juvenile court's disposition of a petition alleging a child is in need of services, in need of supervision, delinquent, or a status offender.

These legislative mandates provide the legal framework within which courts and agencies work to expeditiously reunite children with their families or place foster children in safe and permanent homes. Changes to Virginia law made at the initiative of the Court Improvement Program—Foster Care and Adoption in the Office of the Executive Secretary of the Supreme Court of Virginia, and supported by the federal Adoption and Safe Families Act of 1997, ⁶⁵ are the foundation of this process. These changes in the law have been accompanied by the development of forms, procedures, and best practices to effectuate the changes.

13.302 Emergency Removal Order. The juvenile and domestic relations district court is authorized to enter an emergency ex parte order that removes a child from the custody of the parent or custodian. This extraordinary remedy is allowed to prevent a child from being subjected to circumstances where injury or death might occur if he or she were left with the parent or custodian before a court hearing could be held. ⁶⁶ An emergency removal order is requested by filing a petition alleging that the child is abused or neglected, supported by an affidavit or sworn testimony in person

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before the judge or intake officer. ⁶⁷ This petition must be filed within 72 hours of the removal of the child or otherwise in accordance with section 63.2-1517. The petition must allege that:

		1.	The child would be subjected to an imminent threat to life or health, to the extent that severe or irremediable injury would be likely to result if the child were left in the custody of, or returned to, the parent or custodian pending a final hearing on the petition;
2.	Reasonable efforts have been made to prevent the removal of the child. Reasonable efforts to prevent removal are not required in specified serious circumstances that include listed felonies committed against the other parent or children in the household, previous termination of parental rights, aggravated circumstances defined by the statute, or the abandonment of a child. 68 If there is no reasonable opportunity to provide preventive services, reasonable efforts are deemed to have been made; and
3.	There are no less drastic alternatives which could reasonably protect the child's life or health pending a final hearing on the petition. 69

A Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) affidavit, district court form DC-620, must be filed with the petition alleging abuse or neglect of the child. ⁷⁰

When the petition alleging abuse or neglect is filed, the court must appoint a guardian ad litem for the child. The guardian ad litem will be informed by the court of the date and time of the emergency removal hearing and preliminary removal hearing ⁷¹ and should attend these hearings.

To assure that findings are made that protect the child's status in foster care for purposes of federal financial support, district court form DC-526,

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Emergency Removal Order, should be entered by the court at the conclusion of the emergency removal hearing. ⁷² This order must contain appropriate findings that (i) the child would be subjected to an imminent threat to his or her life or health if left in the parents' or custodian's custody; (ii) reasonable efforts to prevent removal have been made or are not required; and (iii) less drastic alternatives to removal have been considered. In addition, the order, or an attached affidavit, must provide specific information about the situation of the child and state the factual basis for the court's determination that removal was necessary.

At the time of entry of an emergency removal order, the court must consider placing the child with a relative or other interested individual, including grandparents, pending the preliminary removal hearing. ⁷³ Any interested relative can file a separate petition for custody of the child or children who are the subject of the emergency removal order.

13.303 Preliminary Removal Hearing and Order. Once an emergency removal order is entered, a hearing on the removal will be scheduled as soon as practicable, but no later than five business days after the removal of the child. ⁷⁴ This hearing is often referred to as the "five-day hearing." It is intended to be a preliminary rather than a final determination of custody. ⁷⁵ Notice of the hearing, as well as a copy of the petition, must be given at least 24 hours in advance to the child's parents or custodian, to the guardian ad litem, and to the alleged victim if the child is 12 years of age or older. ⁷⁶ Even if notice cannot be given despite reasonable efforts to do so, the hearing will still be held. The parents or custodian may, however, upon motion to the court, obtain a later hearing on the removal of the child. The parents or custodians have a right to counsel ⁷⁷ and must be informed of that right before the preliminary hearing. ⁷⁸

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At the preliminary removal hearing, the parties have the right to present evidence and to confront and cross-examine witnesses. ⁷⁹ The petitioning department, or the child's attorney or guardian ad litem, may apply for a court order allowing testimony by an alleged victim through the use of two-way closed circuit television pursuant to section 63.2-1521 of the Virginia Code. ⁸⁰ This method is available at all stages of the adjudication process for any child witness who is 14 years of age or younger at the time of the trial, and for a child victim who was 14 years of age or under on the date of the alleged offense and is 16 or younger at the time of the trial. Section 16.1-252(D) provides that application for the order must be made at least 48 hours before the preliminary hearing unless good cause is shown for a later application; however, section 63.2-1521 states that "the person seeking such order shall apply for the order at least seven days before the trial date."

For entry of a court order maintaining or authorizing the child's removal from the home, the petitioning agency must prove, by a preponderance of the evidence, the same elements as are required to obtain an emergency removal, namely: (i) imminent threat of injury or irreparable harm; (ii) reasonable efforts to prevent removal from the home or reasonable efforts are not required in specified circumstances that include listed felonies committed against the other parent or children in the household, previous termination of parental rights, aggravated circumstances defined by the statute, or the abandonment of a child; and (iii) no less drastic alternative than removal exists. ⁸¹ If the continued removal is upheld, the court must decide who is to have temporary legal custody of the child, order reasonable visitation by the parents or custodian if visitation "would not endanger the child's life or health," and order child support. ⁸² If placement with a relative or other interested individual, including grandparents, is to be ordered, the court must consider the factors enumerated in section 16.1-252(F1). The court is authorized to order the parents or custodians and others to take specific actions for the protection of the child, including participation in medical, educational, psychiatric, psychological, homemaking, or other similar services, or to issue a preliminary protective order requiring such actions. The court can condition the return of the child on the parents' or custodian's successful participation in these programs. ⁸³

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13.304 Adjudication at the Preliminary Removal Hearing; Scheduling the Disposition Hearing. At the preliminary removal hearing, the court "shall determine whether the allegations of abuse or neglect have been proven by a preponderance of the evidence," unless the parents or custodian, the guardian ad litem, or the petitioning department objects. ⁸⁴ In the case of objection, the court must schedule an adjudicatory hearing within 30 days of the preliminary hearing. ⁸⁵ The dispositional hearing is also scheduled at the time of the preliminary hearing, for a date within 60 days of the preliminary hearing. ⁸⁶ All parties attending the preliminary hearing are put on notice of the new dates, and those who did not receive service for the preliminary hearing are served with summonses. The clear objective here is to keep cases moving along, first by bringing cases to disposition in a short timeframe, and second by preventing delays due to problems in serving parties with notice of subsequent hearings.

Any finding of abuse or neglect must be stated in the preliminary removal order, district court form DC-528, or if the hearing is set off for up to 30 days, in the adjudicatory order for abuse or neglect cases, district court form DC-561. ⁸⁷ The court must find whether or not the child has...