Removal of Kids

One of the first great difficulties a parent and child may face in a care and protection case is the emergency removal of a child. As can be imagined this separation is devastating for all involved. Children may be removed by the Department of Children & Families (DCF) while at day care, at night from their homes or even with the help of the police.

Care & Protection Filing

A care and protection case starts with the filing of a petition in court, usually by the Department of Children & Families. Once the petition is filed an emergency hearing is held to determine whether the child should be placed in the temporary custody of DCF. Unfortunately, the emergency hearing is almost always conducted with just a judge and a social worker from DCF. No witnesses and no chance for opposition.

72 Hour Hearing

The emergency hearing almost always results in a judge granting emergency custody of the child to DCF. Once emergency custody is transferred notice must be given to the parents and a second hearing is scheduled. The second hearing is called a "72 hour hearing." The hearing is called a 72 hour hearing because by law the hearing must be scheduled within 72 hours of the child’s removal.

The 72 hour hearing is a formal hearing with an opportunity for all parties to be heard by the court.

The above information is very general in nature and should not be considered or relied upon as legal advice. If the reader has a legal problem immediately consult an attorney for specific legal advice.

Abuse of Discretion

What is an abuse of discretion motion? For that matter you may be asking, what is a motion?

What is a motion

A motion is simply a request, usually in writing, asking a judge to do something. In Department of Children and Family (DCF) cases a parent or child may request, for example, that a judge order DCF to provide visits, increase visits or provide services. Within the bounds of good judgment, the request in the motion is only limited to the imagination of the party making the request.

Why bring an abuse of discretion motion

So why would someone bring a motion for an abuse of discretion? Why not just bring the request straight to the judge without bringing a motion for an abuse of discretion first? Believe it or not, judges do not have unlimited power.

Do judges have unlimited power

The law gives agencies and departments of the government the power to make decisions without interference from courts. The power of a department to make its own decisions is described as "discretion." Like judges, departments of the government do not have unlimited power or "discretion." Departments of the government are obligated to follow their own rules and regulations. Case law states that when DCF is granted custody of a child decisions related to normal incidences of custody are within the discretion of DCF. Normal incidences of custody have been described as the power to determine where the child will live, medical care, education and to control visits.

Agencies must follow rules

A court can interfere in a decision of a government department like DCF when that department has not followed its own regulations. When a department has not followed its own rules it is said to have committed an "abuse of discretion." An abuse of discretion motion is a written document submitted to a court arguing that a government department may have made a decision that was not within the bounds of its own regulations. The written motion is usually accompanied by a affidavit detailing how the department abused its discretion.

Abuse of discretion may require two hearings

If the court hears the motion and agrees that there is enough evidence to justify that a department may have "abused its discretion" some courts may schedule another hearing. At the second hearing a judge will listen to evidence presented by the parties and make a decision whether the department has "abused its discretion." If the judge determines that the department has abused its discretion, the judge may order the department to follow its regulations. For example if DCF is not providing visits in violation of its own regulations, a judge may order DCF to follow its regulations regarding visits.

*The above information is very general in nature and should not be considered or relied upon as legal advice. If the reader has a legal problem immediately consult an attorney for specific legal advice.

TEN TIPS FOR MEETING WITH A COURT INVESTIGATOR

G.L. c.119, §24 requires the juvenile court to appoint a court investigator. Once a court investigator is appointed, the court investigator will read the Department of Children & Families’ file, interview the parents, children, social worker, collaterals and others. The court investigator will then prepare a written report and submit it to the court. The court investigation becomes an exhibit in any future care and protection proceeding.

1. When speaking to the court investigator focus on the child's needs, not your own.
2. If the meeting takes place in your home be sure that your home is neat and clean. The court investigator will probably want a tour of your home. Make the beds, clean the bathroom, and get rid of clutter.
3. Dress modestly and neatly. Make sure that your personal appearance and hygiene is good.
4. Make sure that you know your child’s date of birth, middle name, medical provider, day care information, medical conditions, and medications.
5. Be well aware that anything said to a court investigator may be used against you. Nothing said to the court investigator is confidential and will be told to the judge.
6. You should have an attorney present with you when speaking to a court investigator.
7. A court investigator will ask many questions. Some of the questions will be about your own personal histories. If you don't understand a question say so and ask for clarification.
8. You should attend all visits with your children. Any missed visit may be used against you to prove unfitness and may be included in the court investigator's report.
9. Don't argue or lose your temper with the court investigator.
10. Don't use your meeting as an opportunity to vent your anger. Be open minded about suggestions that will help return your children.
    

* Disclaimer: The above information is general in nature and should not be undertaken without the express advice of an attorney of your choosing.

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Abandoned By The Education System

For some time now I have been helping children who have been seemingly abandoned by the education system. (Please believe me I do not need any more business and I am not writing this article to get any.) Most of these children have special education needs and have what is called an individual education plan (IEP.) Children who are having a difficult time in school tend to be more withdrawn, anxious, and depressed. Difficulty in school tends to carry over into home life. If you have a child that is having difficulty in school, you know that their mood at home can often times be terrible.

How do parents get help? The initial problem most parents encounter is navigating the bureaucratic educational system. You make a call and your call is not returned. You make another call and the person you need to speak to isn’t in. You call the superintendent and are told to call the school directly. With persistence and a little luck you might eventually get to speak to a decision maker.

After having cut through the first layer of a school’s bureaucracy, many times parents find themselves indirectly blamed for the performance of their children in school. You may hear: "Johnny must stay up too late I’m told he looks sleepy in the morning." "Have you had a medication evaluation for Susie, the teacher says that she just can’t pay attention." "Bill just needs to study harder, he’s missing some homework assignments." "Jane doesn’t know her math facts so she’ll need a tutor to catch up, but you’ll have to pay for the tutor." So instead of getting any help from a school, the parents are forced to defend many rational decisions made on behalf of their child.

Assessing the accuracy and reliability of the information herein is the responsibility of the reader. The information on this page is not financial, legal, medical or therapeutic advice. Please consult a professional of your choice to discuss any specific issues. All information on this page is copyright protected, but may be used if the material is linked to www.lawhound.blogspot.com

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