Preliminary Protective Hearing Bench Card - Enhanced Resource Guidelines
Overview
The Enhanced Resource Guidelines was developed by a steering committee of the National Council of Juvenile and Family Court Judges (NCJFCJ) comprised of judicial officers, content experts, and the NCJFCJ staff dedicated to improving the lives of children and families involved in the child welfare system. This publication is recommended for use by judges and court professionals as a tool to enhance court practice in child abuse and neglect cases.
The NCJFCJ would like to extend our thanks to the Honorable Stephen M. Rubin, Dr. Sophia I. Gatowski, Nancy B. Miller, the Honorable Patricia Escher, Candice Maze, Tamatha Schreinhert, Melissa Gueller, Dr. Shawn C. Marsh, Elizabeth Whitney Barnes, Victoria Sweet and Jackie Ruffin for their efforts in drafting and reviewing this document. The NCJFCJ also wishes to acknowledge the Enhanced Resource Guidelines Steering Committee whose insightful and rich conversations contributed to the development of these guidelines.
We would also like to acknowledge the contributions made by the many individuals who were involved in the development of the original Resource Guidelines and Adoption and Permanency Guidelines.
This will only cover the Preliminary Protective Hearing Bench Card from the Enhanced Resource Guidelines, please download the PDF full access to the entire document.
Case Management - Before the Hearing
Persons who should be present at the preliminary protective hearing
- Judge or judicial officer
- Parents of each child whose rights have not been terminated
- Mothers, fathers (legal, biological, alleged, putative, named), non-custodial parents – all possible parents
- Child
- Assigned caseworker
- Agency attorney and/or prosecuting attorney
- Attorney for each parent
- Legal advocate for the child
- Guardian ad Litem (GAL); CASA
- Child’s current placement (caregivers, foster parents, custodial adults, adoptive parents)
- All adult relatives of the child
- Relatives (P.L. 110-351) with legal standing or other custodial adults, including adult half-siblings; paternal and maternal relatives
- Non-related extended family, fictive kin (persons known and trusted by the families; godparents)
- Parents of a sibling child, where such parent has legal custody of the sibling (P.L. 113-183)
- If ICWA applies: Indian custodian; the child’s tribe and attorney; tribal representative/tribal liaison; ICWA-qualified expert witness
- Treatment and/or service providers
- Parent partners, parent mentors if assigned/available, substance abuse coach, DV advocate
- Cultural leaders, cultural liaison, religious leaders
- Education liaison/school representative
- Education surrogate parent if appropriate
- Law enforcement
- Adult or juvenile probation or parole officer
- Court-certified interpreters or court-certified language services
- Court reporter
- Court security
In all states, the preliminary protective hearing must take place within a
short time after the child has been removed from the home. The time limit is specified by state law and, in most states, must occur within one to three working days after removal.
The main purpose of the PPH is to determine if probable cause exists to remove a child or keep a child in shelter status pending further investigation of the case and whether removal can be avoided through reasonable efforts by the child welfare agency.
Courts can make sure that parties and key witnesses are present by:
- ensuring that the judge, not the bailiff or court staff, makes the determination about who is allowed to be in the courtroom;
- asking the youth/family if there is someone else who should be present;
- requiring quick and diligent notification efforts by the agency;
- requiring both oral and written notification in a language understandable to each party and witness;
- requiring service/tribal notice to include the reason for removal, purpose of the hearing, and availability of legal assistance in a language and form understandable to each party and witness;
- requiring caseworkers and/or protective service investigators to facilitate attendance of children, parents, relatives (paternal and maternal), fictive kin, and other parties;
- facilitating telephonic or video conferencing appearance at hearings; and
- implementing time-certain calendaring.
Review relevant documents.
REVIEW THE PETITION.
- A sworn petition or complaint should be filed prior to the PPH and served/provided to the parents and their counsel.
- The petition should be specific about the facts that bring the child before the court.
- The petition should not be conclusory without relevant facts to explain and support the conclusions.
- Petitions need to include allegations specific to each legal parent or legal guardian if appropriate.
- If the petition does not contain allegations against a legal parent or legal guardian, the child should be placed with or returned to that parent or legal guardian.
- Petitions/removal affidavits need to include specific language clearly articulating the current threat to the child’s safety.
The court should require submission of agency and/or law enforcement reports at least one hour prior to the PPH.
Reports to the court should describe all circumstances of removal, any allegations of abuse or neglect, and all efforts made to try to ensure safety and prevent the need for removal.
Consider whether there are any related cases in juvenile or other courts.
- Are there other family, delinquency, domestic violence, probate, guardianship, or criminal cases or orders of protection involved in this case?
- Can these cases be consolidated before one judge?
- Is there a potential for duplicative or conflicting orders?
- Can the judges consult?
Courts can make sure that parties and key witnesses are present by
Opening the Hearing
- Call the case.
- Identify the people in the courtroom and their connection to the case.
- Explain the type and purpose of the hearing.
Due Process Considerations
- IDENTIFICATION OF PARENTS AND/OR GUARDIANS
- Who are the child’s parents and/or guardians?
- Have the identity and location of all parents and/or guardians been determined?
- If not, what diligent search efforts have been made for all parents and/or guardians? Are they sufficient?
- Has paternity of all children been legally established? If so, how?
- Have efforts to identify and locate fathers been sufficient? What has been done?
- NOTICE
- How were the parents/guardians and foster parents notified of this hearing?
- Was the notice in a language and form understandable to the parents/guardians and foster parents?
- Has the agency exercised due diligence to identify and provide notice to all adult relatives of the child’s removal and their options to participate in the child’s care and placement? (42 U.S.C. § 671(a)(29))
- Has the agency exercised due diligence to provide notice to all parents of a sibling of the child, where such parent has legal custody of the child? (P.L. 113-183 § 471(a)(29))
- Verify that relatives who requested notice actually received notice to attend the hearing (P.L. 110-351 § 103).
- REPRESENTATION
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- Are the parents entitled to representation?
- Are there language issues to consider in appointing counsel?
- Does counsel have sufficient training and experience to provide competent representation in this case?
- Has counsel had sufficient opportunity to consult with his/her client prior to the hearing?
- Has counsel been appointed to represent the child?
- Does counsel have sufficient training and experience to represent the child in this case?
- Has counsel met with the child in person? Is he able to determine and advocate the child’s position?
- Should the court appoint a Guardian ad litem and/or CASA for the child?
- UNDERSTANDING AND COMPETENCY
- Do the parents understand the allegations and the purpose of the hearing?
- Are there parental competency issues?
- APPLICABILITY OF OTHER FEDERAL LAWS AND REGULATIONS
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Do the provisions of the Americans with Disabilities Act, Service Members Civil Relief Act, Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), Interstate Compact on the Placement of Children (ICPC), or other federal law apply to this case?
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Engage parents and any children or relatives present.
- What language are you most comfortable speaking and reading?
- Do you understand what this hearing is about? (Explain the purpose of the hearing.)
- Do you understand the petition? (Review the petition with parties.)
- Were you involved in any ADR process used before this hearing? If yes, what was the outcome?
- What family members and/or other important people should be involved in this process?
Key Inquiries, Analyses, Findings, and Decisions at the Preliminary Protective Hearing
REFLECTIONS ON THE DECISION-MAKING PROCESS TO PREVENT BIAS
Take a moment before every hearing or before making decisions in a case to ask yourself:
- What assumptions have I made about the cultural identity, genders, and background of this family?
- What is my understanding of this family’s unique culture and circumstances?
- How is my decision specific to this child and this family?
- How has the court’s past contact and involvement with this family influenced (or might influence) my decision-making process and findings?
- What evidence has supported every conclusion I have drawn, and how have I challenged unsupported assumptions?
- Am I convinced that reasonable efforts (or active efforts in ICWA cases) have been made in an individualized way to match the needs of the family?
- Am I considering relatives as preferred placement options as long as they can protect the child and support the permanency plan?
- Have I placed the child in foster care as a last resort?
- Have I integrated the parents, children, and family members into the hearing process in a way that ensures they have had the opportunity to be heard, respected, and valued? Have I offered the family and children the chance to respond to each of the questions from their perspective?
- Is this family receiving the same level and tailoring of services as other families?
- Is the parents’ uncooperative or negative behavior rationally related to the involvement of the agency and/or the court?
- If this were my child, would I be making the same decision? If not, why not?
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