Family & Divorce Law Services

WHEN DSS COMES KNOCKING:
ALLEGATIONS OF ABUSE AND NEGLECT IN THE OTHER PARENT’S HOME.

You and your former spouse share custody of your child pursuant to a court order. The two of you see less than eye to eye on issues, but you have no reason to believe that your child is not safe in your former spouse’s home. Then your worst nightmare comes true: your former spouse is arrested and your child has been placed in foster care.

The Department of Social Services investigates allegations of abuse, neglect and dependency of minor children. These terms are broadly defined.

An abused juvenile is a child less than eighteen years of age whose parent, guardian, custodian or caretaker:

1. inflicts or allows serious physical injury to be inflicted upon the juvenile;
2. creates a substantial risk of infliction of physical injury upon the juvenile;
3. uses or allows grossly inappropriate procedures or devices to modify behavior;
4. commits a sexual offense against the juvenile, including the dissemination of pornographic materials;
5. creates or allow serious emotional damage to the juvenile; or
6. encourages delinquent acts by the juvenile.

A neglected juvenile is one who does not receive proper care, supervision or discipline from his caretaker, or who has been abandoned, or who has been placed in an environment injurious to his welfare.

A dependent juvenile is one who is in need of assistance because he has person responsible for his care or because the person responsible for his care is unable to do so.

Typically, a person believing a child to be abused and/or neglected and/or dependant, files a confidential report with the Department. The Department investigates the allegations, and if the investigation indicates that abuse, neglect or dependency has occurred, it can (and will) remove the child from the home. DSS will also file a petition with the juvenile court, who will then have jurisdiction over the child.

If the allegations center on only one parent, DSS may ask that parent to leave the home and allow the other parent to remain with the child. In situations where the allegations are against both parents, or in single parent households, DSS will assume custody of the child and place her in a foster home. Even if the parents are divorced and have a valid custody order in place, DSS custody will supercede the rights of the parents. Thus, if a child is removed from the home of a custodial parent, custody will NOT revert to the non-custodial parent. Instead, the non-custodial parent will have to request placement of the child into his or her home.

In some situations, where DSS is able to identify and find the non-custodial parent, they will permit the child to go to the parent’s home, pending a hearing. Most often however, the child will be placed with a foster family until the other parent (or other family member) can be approved. Of course, this is largely dependent upon the allegations pending against the parent.

When a child is removed from the home, the court will appoint a guardian ad litem for the child, who is required to look after the child’s best interests during the court proceedings. The court must conduct a hearing within seven days after removal. Prior to that, a Day One Conference is held with all parents and caretakers and their attorneys, DSS social workers, the County Attorney and the Guardian ad Litem. The purpose of the conference is to share information about the allegations and the process.

The Non Secure Custody Hearing is held within seven days after the child’s removal from the home. As long as the child remains outside of the home, a second hearing will take place seven days thereafter. Other non secure hearings must be held every thirty days until adjudication is complete.

At the non secure custody hearing, the judge decides whether the child should return to the home, or placed outside the home. If the judge decides return to the home is not acceptable, he must next determine if the current placement is satisfactory. These hearings are not formal trials, but parties can present evidence and cross examine witnesses.

At this point, the non custodial parent should request placement of the child. The court may place conditions on the placement and often DSS will require that the parent undergo a home study to determine if the non-custodial parent’s home is a suitable environment. Home studies can take several weeks. A request to expedite to the Court is often required. Once DSS is involved with a family, it works on its own time schedule. Only a judge can force action.

During this period, a DSS social worker will make periodic visits to the home to check on the well being of the child. Depending upon the allegations in the petition, DSS could require a Child Medical Exam and/or a Child Mental Health Exam. A Child Medical Exam includes a complete physical examination of the child, along with a short forensic interview. The gist of the interview often centers on the child’s knowledge of sexual anatomy and appropriate sexual boundary issues between the child and the parent. A Child Mental Health Exam is a more extensive forensic interview, and will include interviews with the parents and caregivers of the child.

The results of the these examinations will be presented to the Court in the adjudication stage of the process, when the judge decides if the allegations in the petition have been proven. The adjudication is a formal trial, where the parties present evidence, cross examine witnesses and make arguments to the court. The law requires adjudication to take place within 60 days of the petition, unless there is a good reason to delay it.

If the judge determines that the allegations in the petition have not been proven, the case is dismissed. If, on the other hand, the judge determines that the allegations have been proven, the case will move to the disposition phase.

During the disposition phase, the judge will decide what should happen to the child. It is not a formal trial, but evidence will be presented to the court. Ultimately, the judge will determine what should be done to serve the best interest of the child. The court will determine if the child is allowed to return home, and under what circumstances. This is called “reunification of the family”. There will be a discussion of the events that led to the child’s removal from the home and the court could order a parent to undergo drug testing, counseling or other evaluations as a condition of the child’s return.

Ninety days after the disposition hearing, the court will hold a review hearing to review the status of the case. Subsequent review hearings are required every six months to determine whether the plan set out at the disposition hearing is moving toward conclusion.

A permanency placement hearing is required within one year of the child’s removal from the home or within 30 days of a judge’s decision to stop reunification efforts. At the hearing, evidence is presented to allow the judge to develop a plan to achieve a safe, permanent home for the child.

In some cases, the court will decide that reunification is not in the best interests of the child and the County will move to terminate the parental rights.

Assuming reunification is achieved, the County will eventually close its case and custody will revert to the custodial parent. At that point, the juvenile court loses jurisdiction over the child and the parents may pursue a change of custodial arrangement in domestic court.

Copyright © 2005 Bender Law Offices P.C., All Rights Reserved.
Divorce Lawyers, Separation Attorneys, Family Law, International Divorce, Mediation, Agreements, Child Custody, Court Services, Alimony, Domestic Violence, Child Support, Property Distribution, Spousal Support

6608-204 Six Forks Road . Raleigh, NC 27615 . USA

Phone: 919-870-9600 . Fax: 919-847-2473