Right from the Start: The Courts Catalyzing Change Preliminary Protective Hearing

Please review the information in the following sections below.

Persons who should be present at the PPH2

• 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
• Parent partners, parent mentors if assigned/available, substance abuse coach, DV advocate
• Relatives – relatives with legal standing or other custodial adults, including adult half-siblings – Paternal and maternal relatives
• Non-related extended family, fictive kin (someone who is known and trusted by the families; godparents)
• Assigned caseworker
• Agency attorney
• Attorney for each parent (if conflict exists)
• Legal advocate for the child
• Guardian ad Litem (GAL)
• Court Appointed Special Advocate (CASA)
• ICWA expert (if ICWA applies)
• Tribal representative/tribal liaison
• Treatment and/or service providers
• All age-appropriate children
• Foster parents
• Cultural leaders, cultural liaisons, religious leaders
• Court-certified interpreters or court-certified language services
• Education liaison/school representative
• Court reporter
• Court security

Courts can make sure that parties and key witnesses are present by:3

• 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, availability of legal assistance in a language and form that is 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.

Reviewing the Petition

• A sworn petition or complaint should be filed prior to the preliminary protective hearing and served/provided to the parents.
• 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 unless it is determined that there is a safety threat to the child.
• Petitions/removal affidavits need to include specific language clearly articulating the current threat to the child’s safety

Reflections on the Decision-Making Process that Protect Against Institutional Bias:

Ask yourself, as a judge:

• 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 how might it 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?