ELECTRONIC RESOURCE 1A:COMPENDIUM of STATEAND FEDERAL CHILD WELFARE LAW

ELECTRONIC RESOURCE 1a:COMPENDIUM OF STATEAND FEDERAL CHILD WELFARE LAW

1. Abuse and Neglect Colorado State Statutes

Table of Contents

Reporting Abuse and Neglect2

Temporary Custody Hearing7

Dependency and Neglect Petition24

Dependency and Neglect Adjudication29

Disposition36

Involuntary Placement Review45

Voluntary Placement Review49

Permanency Hearing52

Criteria for Termination59

Termination Procedures65

Post-Termination Review Hearing71

Reporting Abuse and Neglect: Mandatory reporters must make verbal and written reports of suspected child abuse or neglect.Dep’t of Human Services investigates these reports.The court may order access to the child, a search warrant for the child, or a Dependency and Neglect petition to be filed.Report subjects may request expungement.

Abuse and Neglect, defined: Child abuse or neglect includes acts that threaten the health or welfare of a child.This includes:
Non-accidental skin bruising, bleeding, malnutrition, failure to thrive, burns, fractures of any bone, subdural hematoma, soft tissue swelling, or death;
Any case in which a child is subject to unlawful sexual behavior;
The child’s parent, guardian, or custodian failing to provide adequate food, clothing, education, shelter, medical care, or supervision that a prudent parent would take;
The child being subject to emotional abuse that substantially impairs or places at risk the child’s intellectual or psychological functioning or development;
When the child’s parent, guardian, or custodian has abandoned the child or allowed another to mistreat or abuse the child;
When the child’s environment is injurious;
When the child is homeless, without proper care, or not domiciled with the parent, guardian, or legal custodian through no fault of such parent, guardian or legal custodian;
When the child has run away from home or is otherwise beyond the control of the parent, guardian, or legal custodian;
When a parent, guardian, or legal custodian has subjected another child or children to an identifiable pattern of habitual abuse, and that parent, guardian, or legal custodian has been the respondent in another proceeding under the Children’s Code, or a court has determined that such abuse or neglect has caused the death of another child; and the pattern of abuse poses a current threat to a child;
When the parent interferes with court-ordered medical treatment of a child;
Manufacture or attempted manufacture of an illegal drug in the presence of a child, or on the premises where a child is found, or where a child resides; or
Where a child tests positive at birth for either a schedule I or a schedule II controlled substance, unless the child tests positive for a schedule II controlled substance as a result of the mother’s lawful intake of such substances as prescribed.

C.R.S. § 16-22-102(9); C.R.S. § 19-3-102(1) and (2); C.R.S. § 19-1-103(1)(a).

Mandatory Reporters:
Anyone may report child abuse and neglect.
However, some professionals are required to make reports if they have reasonable cause to know or suspect that a child has been abused or neglected.They must also report if they observe the child subjected to conditions that would reasonably result in abuse or neglect.
The following are mandatory reporters under the statute:
Physician;
Physician in training;
Hospital personnel who admit, care for, or treat patients;
Surgeon;
Child health associate;
Christian Science practitioner;
Coroner;
Medical examiner;
Public or private school official or employee;
Dentist;
Registered nurse;
Mental health professional;
Osteopath;
Licensed practical nurse;
Dental hygienist;
Optometrist;
Social worker;
Physical therapist;
Chiropractor;
Child care worker;
Commercial film and photograph processor;
Chiropodist;
Psychologist;
Veterinarian;
Pharmacist;
Podiatrist;
Victim advocate;
Peace officer;
Firefighter;
Marriage and family therapist;
Licensed professional counselor;
Unlicensed psychotherapist;
Clergy member;
Anyone who works for the state Department of Human Services;
Registered dietician;
Child and family investigator;
Juvenile parole or probation officer;
Agent of state bureau of animal protection;
Animal control officer
Reporting Procedures: Reports of child abuse or neglect are to be immediately made to county Dep’t of Human Services or local law enforcement, promptly followed by a written report. C.R.S. § 19-3-307(1) & (2). This report is admissible in Dependency and Neglect proceedings. However, it is subject to confidentiality requirements. Dep’t of Human Services gives copies of all reports to the district attorney and to local law enforcement. C.R.S. § 19-3-307(3) and (4).
Investigation: Dep’t of Human Services must begin investigating immediately after receiving the report.Protecting the child and, if appropriate, preserving the family are the immediate concerns. C.R.S. § 19-3-308(1).
Post-Investigation:
Dep’t of Human Services determines if the report is confirmed or unfounded.It is confirmed if supported by a preponderance of the evidence.C.R.S. § 19-1-103(27).
Confirmed reports are forwarded to the state Department of Human Services within sixty days. C.R.S. § 19-3-307(1); C.R.S. § 19-3-308 (5.3).
Dep’t of Human Services may be liable for not investigating allegations of abuse when recommending placement with an abusive family member. Currier v. Doran, 242 F.3d 905 (10th Cir. 2001).
When investigating any report of child abuse or neglect, Dep’t of Human Services must use the Safety and Risk Assessment and Family Needs Assessment of the Colorado Assessment Continuum.This instrument provides objective criteria for making any recommendations regarding whether a child is at risk. C.R.S. § 19-3-308(4) and (5.5).
Dep’t of Human Services may decide to file a Dependency and Neglect petition.It may also seek a court order to take the child into protective custody.C.R.S. § 19-3-308(4).
If Dep’t of Human Services files a petition, it must notify the child’s guardian ad litem.The notification must be in writing and include:
The reasons for initiating the petition;
Suggested treatment; and
Suggested disposition.

C.R.S. § 19-3-308(10).

The county department and a person believed to be responsible for first time minor abuse or neglect of a child may agree to defer the filing of a confirmed report of child abuse or neglect with the state department as required by C.R.S. § 19-3-307.The parties may enter into a safety agreement when certain circumstances enumerated in the statute exist. C.R.S. § 19-3-309.5.
Dep’t of Human Services must provide reasonable efforts to prevent or eliminate the need for out-of-home placement of a child. C.R.S. § 19-1-103(89); C.R.S. § 19-3-208.
Dep’t of Human Services must develop, with the family, an individual case plan for all abused and neglected children and families of such children in each case opened for service. C.R.S. § 19-3-209.

Temporary Custody:
Dep’t of Human Services may seek a court order for custody of a child at any time of the day or night.C.R.S. § 19-3-312(1); C.R.S. § 19-3-405.
If custody is granted by the court, the parent or guardian is entitled to a hearing within 72 hours, excluding weekends and holidays. C.R.S. § 19-3-403(3.5).
Law enforcement may take a child into custody without a court order when the child is abandoned, lost, seriously endangered or seriously endangers others, and immediate removal appears necessary to protect the child or to protect others; or when there are grounds to believe the child has run away from home and the parent, guardian, or legal custodian has not made a runaway report. C.R.S. § 19-3-401.
If this is done, and the child is placed in a temporary facility not operated by Dep’t of Human Services, law enforcement must promptly notify the court.The parent or guardian is entitled to a hearing on this decision within 48 hours, excluding weekends and holidays. C.R.S. § 19-3-403(2).
A child may not be placed in emergency placement with a person with specified criminal history, such as child abuse, a crime of violence, unlawful sexual behavior, felony domestic violence, felony assault, felony drug offense, violation of a protective order, or homicide. C.R.S. § 19-3-406(4).
A newborn child who is not in a hospital setting may not be taken into custody for more than twenty-four hours without a court order.The court order for custody must include findings that an emergency situation exists, and that the newborn child is seriously endangered. C.R.S. § 19-3-401(3)(a).
A newborn child who is in a hospital setting may not be taken into temporary protective custody without a court order.The court order for custody must include findings that an emergency situation exists, and that the newborn child is seriously endangered. C.R.S. § 19-3-401(3)(b).
However, the court order is not required when :
The newborn child is identified by a physician, registered nurse, licensed practical nurse, or physician’s assistant engaged in the admission, care, or treatment of patients as being affected by substance abuse, or demonstrating withdrawal symptoms resulting from prenatal drug exposure; or
When both of the newborn child’s birth parents, or the only identifiable birth parent, have been determined by a physician, registered nurse, or qualified mental health professional to be in need of custody, treatment, and evaluation of mental illness or grave disability; or
When the newborn child is subject to an environment exposing the child to a lab for manufacturing controlled substances.

C.R.S. § 19-3-401(3)(c).

Court Action:
If there is suspected child abuse or neglect, anyone may request juvenile court jurisdiction.The court must then order an immediate investigation to determine if the child needs court protection.The investigation may be made by Dep’t of Human Services, the probation department, or any other agency designated by the court. C.R.S. § 19-3-501.
Generally, Dep’t of Human Services must notify the court only if the report is serious enough for the court to order an investigation or the filing of a Dependency and Neglect petition.Dep’t of Human Services usually does not notify the court if it handles the case through voluntary services to the family. C.R.S. § 19-3-309.5; C.R.S. § 19-3-312(1).
On the basis of a report of child abuse or neglect made by a mandated reporter, the court may authorize or may order the filing of a petition in dependency and neglect. C.R.S. § 19-3-501(2).
The court may also authorize an informal adjustment, without a petition, provided:
The child and his or her parents, guardian, or other legal custodian are advised of their rights, including the right to counsel, at every stage of the proceedings;
The facts are admitted and establish prima facie jurisdiction (except that such admission may not be used in evidence if a petition is filed); and
Written consent is obtained from the parents, guardian, or other legal custodian and also from the child (if the child is old enough).

C.R.S. § 19-3-501(1)(c).

If the child’s parent, guardian, or custodian cannot be located, the court may, at any time of the day or night, authorize or consent to emergency medical treatment. C.R.S. § 19-3-403(6).
If the investigator is denied access to the child, the juvenile court may, upon a showing of good cause, order the responsible person to allow access to the child.A responsible person who refuses to comply with the order may be held in contempt after a show cause hearing.The person may be jailed without bond until the child is produced or the person is proved unable to help give information about the child. C.R.S. § 19-3-308(3).
The Fifth Amendment privilege against self-incrimination may not be used to circumvent a court’s order directing a parent to produce a child to authorities. Baltimore v. Bouknight, 493 U.S. 549 (1990).
If the child must be found or taken into custody, the court may issue a search warrant.The request must be in writing and supported by affidavit.Probable cause must be shown. C.R.S. § 19-1-112(1) and (3).
The warrant must include:
Child’s name or description;
Place to be searched;
Grounds for probable cause; and
Names of those who gave supporting affidavits

C.R.S. § 19-1-112(2).

The person in possession of the place to be searched must be served.Service must include the warrant, application and supporting affidavits. C.R.S. § 19-1-112(7).
They should be served in the daytime, but the court may order them served at night if necessary.C.R.S. § 19-1-112(6).

Temporary Custody Hearing: A child may be taken into temporary custody without a court order, with an ex parte protective order, or after a temporary custody hearing.The court must determine whether county Dep’t of Human Services made reasonable efforts to prevent the placement.

Emergency Custody:
A law enforcement officer may remove a child without a court order if the child is in immediate danger, such as if the child is:
Abandoned;
Lost;
Seriously endangered;
A runaway;
With a parent under an arrest warrant for violating a custody order.

C.R.S. § 19-3-401(1).

A law enforcement officer, upon the recommendation of Dep’t of Human Services, a physician, a nurse, or a physician’s assistant, may detain a newborn child in hospital while an order of the court is being obtained. C.R.S. § 19-3-401(3)(b).
Court orders for custody of a newborn child are not required if:
The newborn child is affected by substance abuse or demonstrates withdrawal symptoms;
The newborn child’s only identifiable birth parent or parents have been determined by a physician, registered nurse, or qualified mental health professional to be mentally ill or gravely disabled; or
The newborn child is subject to an environment that will expose the child to a laboratory for manufacturing illegal drugs.

C.R.S. § 19-3-401(3)(c).

The law enforcement officer must release the child to the parent or other responsible adult unless placement out of the home is necessary to the child’s best interests and welfare.The judge may condition the child’s release or require a written promise to bring the child to court. C.R.S. § 19-3-402(2).
Dep’t of Human Services may remove a child only with a court order.The court may issue an ex parte protective custody order, if continuing the child in the home or in the responsible person’s custody presents a danger to the child’s life or health in the foreseeable future.Dep’t of Human Services, law enforcement, hospital administrators and physicians who has a child suspected of being neglected or abused may also request such an order. The order may be written or verbal and it expires in three court days.Dep’t of Human Services must be notified to begin dependency and neglect (Dependency and Neglect) proceedings. C.R.S. § 19-3-405.
The court may issue orders to protect the child without removal.An emergency protective order may restrain a person from threatening, molesting, injuring or contacting the child or from interfering with the child’s supervision.The order expires in 72 hours, excluding Saturdays, Sunday, and legal holidays. C.R.S. § 19-3-405(2)(b) and (4).
The court may order emergency caretaker services into the home. This option avoids a foster care placement.The emergency caretaker remains until a parent, guardian or legal custodian enters the home and expresses a willingness and apparent ability to resume charge of the child.The order expires in 72 hours, excluding Saturdays, Sundays, and legal holidays.(Emergency caregiver services are not available in every county.) C.R.S. § 19-3-404.
Any law enforcement officer, Dep’t of Human Services employee or other person authorized by the court or statute to take or retain custody of a child has good faith immunity from civil or criminal liability.Immunity also extends to transporting the child and releasing the child from custody.Good faith is presumed. C.R.S. § 19-3-403(8).

Temporary Custody Hearing:
After removal, the court must hold a temporary custody hearing (also called a shelter or detention hearing, or preliminary protective proceeding) to determine further custody of the child, or whether the emergency protection order should continue.Time frames for holding a custody hearing depend upon the child’s placement and authority for placement:
If the child is in a juvenile detention facility, the court must hold a hearing within twenty-four hours of placement (excluding Saturdays, Sundays, and legal holidays).
If the child was picked up by law enforcement and placed in a shelter facility or temporary holding facility not operated by Dep’t of Human Services, the court must hold a hearing within forty-eight hours of placement (excluding Saturdays, Sunday, and legal holidays).C.R.S. § 19-3-403(2)
If the court entered an emergency protective order, or if the child was placed with Dep’t of Human Services, the court must hold a hearing within seventy-two hours of placement (excluding Saturdays, Sunday, and legal holidays).C.R.S. § 19-3-403(3.5)
Courts may not enter nunc pro tunc orders.C.R.S. § 19-1-115(c)(6.7)
An order related to out of home placement is effective on the date that the order is signed by the court.A court is not to use the words “nunc pro tunc” in its written order, but is to use the phrase “the effective date of this order is.” C.R.S. § 19-1-115)(c)(6.7)
Dep’t of Human Services’ failure to request a timely custody hearing does not deprive the court of jurisdiction. P.F.M. v. District Court, 184 Colo. 393, 520 P.2d 742 (1974)
Temporary custody options include:
In evaluating whether the court should grant, transfer or continue temporary custody with Dep’t of Human Services, the court must determine whether it is satisfied from the information presented at the hearing that such custody is appropriate and in the child’s best interests. W.H. v. Juvenile Court, 735 P.2d 191 (Colo. 1987)
The court should not apply the Dependency and Neglect adjudication or disposition standard at the temporary custody hearing.In W.H. v. Juvenile Court, a nine-year-old boy had run away from home.When police found him, he had extensive bruising on his arm, which he stated was caused by his stepfather hitting him repeatedly with a plastic bat.At the temporary custody hearing, the trial court held the incident did not meet the statutory Dependency and Neglect definitions.The Colorado Supreme Court reversed and remanded, because the court should have evaluated whether placement was in the child’s best interests. C.R.S. §19-3-403(3.6)(a)(V)
The court may also consider and give preference to giving temporary custody to a child’s relative who is appropriate, capable, willing and available for care if it is in the best interests of the child and if the court finds there is no suitable birth or adoptive parent available, with due diligence being exercised in attempting to locate any such parent. C.R.S. §19-3-403(3.6)(a)(V)
The court may enter any other appropriate orders.

C.R.S. §19-3-403(3.6)(a)(V)

At the temporary custody hearing, the court may consider any information having probative value, regardless of its admissibility under the rules of evidence.The standard for receipt of evidence at the temporary custody hearing is much more liberal than at other hearings.The court may consider “any information having probative value.”Despite this liberal standard, the court should exercise care to exclude evidence that is not reliable.Regardless of the evidentiary standard, the court should be consistent in its evidentiary rulings, so the parties may plan for the type and quality of evidence to be presented at temporary custody hearings.C.R.S. § 19-3-403(3.6)(a)(II)

Advisement: Each parent attending a temporary custody hearing must be given a form affidavit and advisement. Several sample advisements follow. C.R.S. § 19-3-403(3.6)(a)(I)
Sample Advisement