Child in Need of Care Cases
Louisiana's Child in Need of Care Process: Step-by-Step
Child In Need of Care (CINC) cases begin when the Department of Child and Family Services (DCFS) receives a report of child abuse or neglect. The report must involve:
an alleged child victim (under the age of 18);
a parent or caretaker who participates in or allows mistreatment, or whose involvement in the mistreatment is unknown; and
an allegation that the child's condition creates a high serious of harm to the child.
The report may come from a family member, friend of the family or a mandated reporter. Once DCFS receives a report, a child protection investigation will begin.
The law requires a mandated reporter to report to DCFS under certain circumstances. Some kinds of mandated reporters include, but are not limited to, people in the following jobs:
healthcare providers (doctors, nurses, dentists) who treat a child or their family;
mental health or social services workers (therapist, counselor) who provides services to a child or their family;
teachers, coaches, police officers, and members of the clergy; and
film or photography processors.
If a mandated reporter suspects child abuse or neglect in the course of their job, they have to make a report.
Child Protection Investigation
First, DCFS attempts to contact the family. DCFS will determine whether the child is in immediate danger or risk of harm and thus a child in need of care.
The child protection investigator may determine that the report is "not substantiated." If so, then they close the investigation and take no further action.
The child protection investigator may determine that the allegations are valid. If so, DCFS makes a recommendation for either (1) a safety plan or (2) removal.
DCFS may recommend a safety plan if the child is in no immediate danger, but is at risk for neglect or abuse. At this stage, a family may enter a voluntary or court-ordered family services. The Court will issue an "instanter order" with a safety plan. The children could remain in the home with supervision by the agency.
If the child is in immediate danger or risk of harm, DCFS requests an "instanter order of removal" from the judge. This order awards custody of the children to DCFS. It allows DCFS to immediately take emergency custody of the child.
Once DCFS gets an instanter order of custody, they will remove the child from their home. DCFS temporarily places the child with a suitable relative or a certified foster family.
The Court holds a hearing within 72 hours (3 days) if:
an instanter order is issued removing the child from the home; or
an instanter order is issued with a safety plan and the parents do not agree with it.
At the 72-hour hearing, the parent or parents can respond in one of two ways:
the parents can agree ("stipulate") to the child or children remaining in foster care; or
deny that DCFS had just cause to take custody of the children.
If the parents deny the allegations, the DCFS investigator will present evidence of the alleged neglect or child abuse. The parents also have an opportunity to present their own evidence to challenge the neglect or child abuse allegations.
After the 72-hour hearing, a child may:
remain in foster care;
be moved into the custody of a family member or fictive kin;
return home with the parents, unsupervised by DCFS; or
return home with the parents, subject to a safety plan.
Based on the evidence, the Court decides whether the child should:
remain in foster care,
return home to the parent(s), or
be placed into custody of a relative or fictive kin.
The Court decides based on the grounds for continued custody or continued safety plan.
Advice and Representation
At the 72-hour hearing, the court must explain, in terms understandable to a child:
the nature of the proceedings and allegations, and
the right to an adjudication hearing.
The court will also explain the parents' responsibility and involvement in the process.
The child may be assigned a "Court-Appointed Special Advocate" or CASA, to represent the child in the CINC case. The CASA is a person who has been specially trained to assist the Court in CINC cases. The CASA will help the Court determine what is in the best interest of the child.
If the allegations involve potential criminal consequences, a parent may be entitled to a public defender.
In some cases, a petition is filed before the continued custody hearing. An attorney may ask the Court for a pre-hearing conference before the parents answer the petition.
Informal Adjustment Agreement
A family may agree to court-ordered family services in an informal adjustment agreement. This is like a "pre-trial diversion" agreement in criminal court. An informal adjustment agreement can refer the case to an intake officer as a families in need of services case.
The original time for the informal adjustment agreement will be between 3 - 6 months. The case might be dismissed or remain pending during the time of the informal adjustment agreement.
Before or after the 72-hour hearing, the district attorney's office, representing the DCFS, will file a petition with the Court. It will include the child abuse and/or neglect allegations that were found to be valid during the child protection investigation.
If it is filed before or during the continued custody hearing, the parents may be required to answer the petition at the end of the continued custody hearing. The parents will be served with a copy of the petition.
Otherwise, the petition will set a date for the appearance or answer hearing. Once the petition is filed, the parents must answer the within 15 days.
If the child has been removed from the home, the petition must be filed within 30 days. If a safety plan has been ordered, the petition must be filed within 45 days. If the petition is not timely filed, the child will be returned to the parent or the case plan will automatically terminate.
This hearing gives the parents the opportunity to agree with (stipulate to) the allegations outlined in the petition or to deny that the allegations are valid.
At the appearance or answer hearing:
If the parents agree or stipulate, the child is adjudicated as a "Child in Need of Care." The Court may then proceed immediately with a "Disposition" Hearing .
If the parents deny, a future hearing date is set for an "Adjudication" Hearing
The next step in the process depends on whether the parents stipulated or denied the allegations.
Parents have a right to file pre-hearing motions, including motions to dismiss the case .
If a child is removed from their parents' home, an adjudication hearing must be set within 45 days of the removal. If the child is not continued in custody, the hearing must be set within 105 days of the filing of the petition.
On the adjudication hearing date, a trial is held. Only certain people are allowed to attend.
The adjudication hearing uses the rules of evidence applicable to civil proceedings. The child and their parents have the right to present evidence and call witnesses at the adjudication hearing. The state must prove that the reported abuse or neglect happened.
At the adjudication hearing, the judge decides whether enough evidence exists to determine that the reported abuse or neglect occurred. The judge may decide:
to dismiss the case based on lack of evidence and return the child to their parents;
that the evidence demonstrates the family is in need of services; or
that enough evidence exists to show that the child was mistreated.
If the judge decides that enough evidence exists that the child was mistreated, the child is "adjudicated as a child in need of care." When this happens, the parents must comply with a case plan created to address the problems that led to the mistreatment.
In certain cases, the adjudication may be vacated, after a motion filed by the child or parent and contradictory hearing.
After an adjudication order, the court can order a pre-disposition investigation. The investigation will address:
the circumstances, needs, and social history of the child and his family;
the circumstances surrounding the factual allegations of the petition;
whether the child has an established and significant relationship with a parent, grandparent, sibling, or other relative which should be preserved in the best interests of the child.
If the circumstances warrant, and such a significant relationship exists, DCFS must include in the case plan arrangements for the child's continuing contact with them while the child is in foster care. A written report of the pre-disposition investigation is provided to the court before the disposition hearing.
The Court can also order mental or physical examinations of the child and their parents if they would be helpful in a fair and just disposition.
Before entering a disposition, the Court must hold a disposition hearing. The disposition hearing can be held on the day of:
the appearance/answer hearing, if parents stipulate that the child is in need of care; or
the adjudication hearing, after the hearing if the judge determines the child is in need of care.
At the hearing, the Court should consider any pre-disposition investigation reports or mental or physical examination reports as well as all other evidence relating to the proper disposition.
Once a child is adjudicated to be in need of care, the child's health and safety is the most important concern in deciding the disposition. The Court may order any of these dispositions:
Place the child in the custody of a parent or such other suitable person on such terms and conditions as deemed in the best interest of the child including but not limited to the issuance of a protective order pursuant to Article 618.
Place the child in the custody of a private or public institution or agency.
Commit a child found to have a mental illness to a public or private institution for persons with mental illness.
Grant guardianship of the child to a non-parent.
Make such other disposition or combination of the above dispositions as the court deems to be in the best interest of the child.
Of the potential dispositions, the Court should choose the least restrictive disposition that is consistent with the circumstances of the case, the health and safety of the child, and the best interest of society. The Court will not remove a child from the custody of his parents unless his welfare cannot be adequately safeguarded without such removal. This means that removal is the last resort.
Judgment of Disposition
The Court will enter a judgment of disposition outlining:
The nature of the disposition.
The maximum duration of the disposition.
The agency, institution, or person to whom the child is assigned, including the responsibilities of any other agency, institution, or person having legal responsibility to secure or provide services to the child which the court has determined are needed.
Any other applicable terms and conditions regarding the disposition.
The Court must enter written reasons approving any case plans or specifying why the case plans are not protect the health and safety of the child or is not in the child's best interest. The disposition remains in place until the child's 18th birthday, unless it expires sooner by its own terms.
If a child is removed from their parents' home, periodic review hearings are required. The first review hearing will be held within 6 months from the date the child was removed from their home and at least every six months afterward. Review hearings may be held every 3 months or more frequently if needed.
Parents are served with notice of the review hearings and should attend. If a parent is absent and the record shows that they were served with notice, the hearing will be held in the parents' absence.
Case Report Review
At the review hearings, the Court reviews the case review report. The case review report addresses:
whether there is still a need for the placement and whether the placement remains appropriate;
whether and to what extent the parents have complied with the case plan.
whether progress has been made toward alleviating or mitigating the causes that led to the placement in foster care and if so how much progress; and
A likely date by which the child may be returned to the home or placed for adoption or guardianship of the person of the child.
Parents can file a response to the case review report. They also have the right to testify, confront and cross-examine witnesses, and introduce evidence.
At the end of the case review hearing, the Court can:
Approve the plan as consistent with the health and safety of the child and order compliance by all parties.
Find that the case plan is not appropriate, in whole or in part, based on the evidence presented at the contradictory hearing, and order the department to revise the case plan accordingly.
Parents must successfully complete the case plan before custody of the child is returned to them.
No later than 12 months after a child is removed from their home, the Court must conduct a permanency hearing. When appropriate, case review hearings and permanency hearings can be scheduled together. Permanency review hearings have to be held at least every 12 months until the child is permanently placed.
The purpose of the permanency hearing is for the Court to decide the permanent plan for the child. In making its decision, the court will consider what is most appropriate and in the best interest of the child. The law outlines the following priorities of placement:
Alternative Permanent Living Arrangements
The primary goal is always reunification of the child and the parents. Beginning at 12 months, depending on the parents' progress with their case plan, the primary goal of the permanency plan can be changed.
The primary goal is to return the child to the legal custody of the parents within a specified time period. The time period should be consistent with the child's age and need for a safe and permanent home. In order for reunification to remain as the permanent plan for the child, the parent must be complying with the case plan and making significant measurable progress toward achieving its goals and correcting the conditions requiring the child to be in care. If the goal of reunification is achieved, the case is closed.
If the goal is changed to adoption, DCFS will begin the process of termination of parental rights, which is described in detail below.
The law outlines several purposes of guardianship:
to provide a permanent placement for children when neither reunification with a parent nor adoption has been found to be in their best interest;
to encourage stability and permanence in the lives of children who have been adjudicated to be in need of care and have been removed from the custody of their parent; and
to increase the opportunities for the prompt permanent placement of children, especially with relatives, without ongoing supervision by the department.
Guardianship can involve placement with a legal guardian. It can also mean placement in the legal custody of a relative who is willing and able to offer a safe, wholesome, and stable home for the child.
Before placement for guardianship, DCFS will conduct an evaluation of the proposed guardian's home.
Alternative Permanent Living Arrangements
For children age sixteen or older, the Court can consider "placement in the least restrictive, most family-like alternative permanent living arrangement."
If the permanency plan goal is changed to adoption and DCFS determines that the case meets criteria for termination of parental rights, a petition for termination of parental rights will be filed with the Court. It will state the reasons for pursuing termination of parental rights.
The Court will require the parent to appear in person and answer the petition no later than 15 days after the petition is filed. At the hearing, the parents will be formally advised of DCFS' intent to terminate their parental rights.
At this hearing, the parents will have the opportunity to either: (1) agree with (stipulate to) the contents of the petition or (2) deny the contents of the petition. If a parent stipulates, that means they agree with the reason for termination of parental rights that DCFS outlines in the petition and agrees that the child should be freed for adoption. If a parent denies, they do not agree with the reasons for termination of parental rights that DCFS outlines in the petition. Parents who deny are afforded a hearing to provide testimony as to why they disagree.
If a parent "stipulates" to the termination of parental rights, then their rights are terminated at the answer hearing. The child is not legally freed for adoption until the parental rights of both parents are terminated.
If the parent denies that there is reason for their parental rights to be terminated, a termination of parental rights hearing will be set within 60 days.
Although the termination of parental rights hearing is originally set within 60 days of the appearance hearing, it can be continued for good cause on the motion of either party. After some period of time, usually at least 12 months, but sometimes longer, parental rights may be terminated.
Once a parent has been served or notified of the termination of parental rights hearing, if the parent fails to appear in court for the hearing, it will go forward in their absence. DCFS still has to prove their case. The burden of proof is "clear and convincing" evidence. The law outlines the types of behavior that constitute proof of parental misconduct.
DCFS will provide the judge with all of the evidence as to why the parental rights should be terminated. Parents and their attorneys have the right to introduce evidence at the termination of parental rights hearing. They also have the right to state their case as to why the parental rights should not be terminated.
The judge decides the outcome and whether parental rights should be terminated. The judge may terminate parental rightsor may allow the parent more time to work their case plan.