What is a “dependency”?
Parents have a fundamental, constitutionally protected right to parent their children free of government interference absent a compelling government interest. Children likewise have a right to conditions of basic nurture, health, and safety. Government has been determined to have an interest in ensuring these children’s rights are protected and thus in all 50 states, laws provide a means to protect children from harm or risk of harm by their parents, guardians, and/or legal custodians. These laws are known collectively as “dependency” laws, although different states may use different terms to describe a “dependent” child. For example, a “ward of the state” is another term for a dependent child.
Washington statutory law defines a “dependent child” as a child who has been:
a) abandoned; and/or,
b) abused or neglected (sexual abuse, sexual exploitation, or injury of a child by any person under circumstances which cause harm to the child’s health, welfare, or safety, or the negligent treatment or maltreatment of a child by a person responsible for or providing care to the child; and/or
c) a child having no parent, guardian, or custodian capable of adequately caring for the child, such that the child is in circumstances which constitute a danger of substantial damage to the child’s psychological or physical development. This may include an “unavailable” parent; i.e., a parent who is incarcerated or otherwise unable to perform day-to-day parenting functions.
How does a dependency case begin?
In Washington, a dependency case typically begins when a child is removed from a parent, guardian, or legal custodian by Child Protective Services (a division of the Department of Social and Health Services) or by local law enforcement. CPS may legally remove children after obtaining an ex parte “pickup order” from a judge or court commissioner without prior notice to the parents, or in emergent circumstances by law enforcement, a classic example being where a young child is found wandering unattended in the street. It is not uncommon for CPS to coordinate its efforts with law enforcement to pick up children.
In some cases, CPS/DSHS will get involved with families and offer voluntary services in lieu of filing a dependency case. Each case is different and whether or not a dependency case often depends on a number of factors which may include the age of the child and the level of risk they face. Substance abuse and homelessness, in and of themselves, would not necessarily justify a dependency filing but common risk factors in dependency cases include untreated substance abuse, mental illness, domestic violence, and physical or sexual abuse by a parent, guardian, or custodian. In short, if CPS or law enforcement believe there is an imminent threat of substantial harm to the child’s physical or psychological development, a dependency case is triggered.
What happens when a dependency case is filed?
1. Shelter Care Hearing.
If a child has been removed by CPS and/or law enforcement, the Court must hold a “shelter care” hearing within 72 hours (excluding weekends and holidays). “Shelter care” means “temporary physical care” either with a relative, suitable person or in a foster home. Parents have the right to have a contested shelter care hearing. They also have the right to “waive” the shelter care hearing without admitting to any of the allegations in the dependency petition, meaning they agree to allow the child to remain out of their care temporarily without admitting that the allegations in the dependency petition are true.
If the parent chooses to have a contested shelter care hearing, the State will present evidence, generally the testimony of social workers and parents, which can include hearsay. The State’s burden of proof at shelter care is “reasonable cause,” which is the lowest standard of proof. This is because the law is geared towards erring on the side of protecting the child while the case is being investigated. If the parent chooses to have a contested shelter care hearing, the Court will decide whether the parent is currently able to “provide supervision and care” for the child, or whether there would be a “serious threat of substantial harm” if the child is immediately returned to the parents’ care.
The standard of proof at shelter care is “reasonable cause,” meaning did the agency have a reasonable belief that the child was at risk so as to justify removal. This a low burden, so low in fact that most parents don’t prevail, especially if there is evidence of recent drug use, domestic violence, or significant mental health concerns. If a crime was committed by one parent, CPS may file a petition but allow the child(ren) to remain in the other parent’s care, subject to conditions, such as compliance with applicable restraining orders, etc.
Likewise, within 72 hours of placement, DSHS policy is to convene a Family Team Decision-Making Meeting (FTDM), at which time issues of placement are discussed by the parents and their families. There is a preference under the law for children to be placed with relatives or other suitable person(s) with whom the child is or may be comfortable. Placement agreements can often be made at the FTDM, subject to applicable background checks, which generally mean no disqualifying CPS or criminal history.
2. Dependency Fact-Finding.
After shelter care is established, the next legal phase of the case is the dependency fact-finding (trial). Most cases settle, meaning an agreed order of dependency is reached. However, in those cases in which the parent wishes to challenge the allegations in the dependency petition, the court will schedule a dependency trial, aka “fact-finding” hearing.
By law, the juvenile court will schedule the trial within seventy-five (75) days after the child has been placed, although the court has the authority to schedule the trial beyond 75 days for cause. DSHS must prove the facts alleged in the Dependency Petition. If the DSHS cannot prove its case, the Juvenile Court must dismiss dependency proceedings.
Unlike the reasonable cause standard of proof at shelter care, the state’s burden at fact-finding is “preponderance of the evidence,” meaning more likely than not. The Rules of Evidence apply at fact-finding; hearsay is not allowed, although there are numerous exceptions to the hearsay rules the state can employ to have negative information presented that would otherwise be barred by the Rules of Evidence.
Once a child is found “dependent,” the court holds a dispositional hearing to determine the child’s placement and the appropriate services to be offered or provided to the family so that the child can be safely returned to the parent. The dispositional hearing is usually held right at the end of the hearing at which dependency is established by the court, but it can be held by law up to 14 days later.
It is possible for the parties to agree to, or for the court to order, an in-home dependency, although these are less common at the outset than an out-of-home placement. However, even in an in-home dependency, remedial services will still be ordered. Once dependency is established, when a child is returned home, by law the case must remain open for 6 months before the case can be dismissed.
3. What happens after a dependency has been established?
Once dependency is established, the juvenile court will hold periodic review hearings. The initial dependency review hearing must be held within 90 days of the entry of the dependency order. Regular reviews are held every six months thereafter until the case is dismissed. At review hearings the court will review the status of the case; specifically the court will review whether DSHS has made referrals for all court-ordered remedial services, whether the parent has complied with the services and whether they are making progress towards correcting the risk factors that caused the state to file the dependency case, whether parents are visiting the child(ren) regularly, and also how the child is doing.
The court will also review the need for continuing out-of-home care, the guardian ad litem’s report. It may also consider the perspective of the child’s caregiver, as well as any additional service recommendations for either the parent or the child.