Court Petition

When there are ongoing safety concerns that cannot be managed, and the risk of future child maltreatment is present, the child protective services (CPS) agency will file a petition with the courts to take custody of the child. This usually entails the child being removed from the home. The decision to file a petition seeking custody is a complex and difficult one that requires assessing the safety of the child and weighing it against the trauma of the child being separated from his or her parents or caregivers. Therefore, petitions are usually filed when children have been exposed to or will be exposed to serious threats to their safety.

Cases begin with a petition, or initial pleading, before a court. Following that, there is an initial hearing, which is where the court determines whether the child should be placed into foster care or remain in the home. If the child is to be placed in foster care or receive additional services from the agency, then an adjudication hearing will be scheduled to hear evidence supporting the petition. At the disposition hearing, which may occur simultaneously with the adjudication hearing or shortly afterwards, the court determines which specific services the child and family should receive. Review hearings to review progress in the case take place, at a minimum, every 6 months. Permanency hearings must begin within 12 months of adjudication, and after that are held every 12 months to determine progress toward achieving permanency for the child and family.

Initial Pleading

Filing a petition, or initial pleading, with a court initiates a child protection proceeding. The State or county child protective services (CPS) agency is the petitioner, and the parents, caretakers, or child may be referred to as respondents. As the petition is a civil, rather than criminal, matter, they are not “defendants,” and the petition does not “charge” them with child abuse or neglect. Criminal charges related to abuse or neglect may be filed but are usually separate from custody hearings.

The petition will contain the essential elements of the alleged child maltreatment or need for the child to be placed in foster care. In addition, the pleading must include information regarding efforts the agency has made to prevent placement. It does not need to contain all the facts, but should include enough to establish the court’s jurisdiction. Federal law does not govern State and local practices regarding the filing of petitions, emergency removals, and prior authorization of removals by judicial officers, so these vary widely among and within States.

Once it receives the petition, the court will have three options:

  • Grant ex parte custody
  • Schedule an initial hearing before removal
  • Deny the petition

Many removals are authorized by ex parte (which means "on behalf of or involving only one party to a legal matter and in the absence of and usually without notice to the other party") orders, and the first hearing is conducted after the removal has occurred. The courts have the option of granting the ex parte request or denying it and scheduling an initial hearing to consider the issue of placement more fully. In deciding whether to grant the removal application ex parte, the judge will determine the risk of harm to the child if removal is not authorized and what efforts the CPS agency has made or could make to avoid removal, address the threats to the child’s safety, or reduce the risk.

In some States, the petitions do not have to include a request that the child be removed. It sometimes may be useful to file a petition without asking for removal, such as when maltreatment is substantiated and removal does not appear necessary, but the parents are resistant to the CPS agency's intervention. In some States, the court may enforce or mandate parental cooperation.

When immediate removal of a child is dictated by emergency circumstances, however, some CPS agencies can remove the child, then promptly file a petition and obtain judicial approval for the removal. The States’ laws set time limits for obtaining retroactive approval for the removal. Some courts have procedures in place to ensure round-the-clock agency access to a judge with the expertise and authority to respond to requests for removal. The CPS caseworker needs to ensure that the timely filing of the petition occurs immediately after emergency removals.

Initial Hearing

The first event in court is the initial hearing, which is also known as the preliminary protective, shelter care, detention, emergency removal, probable cause, or temporary custody hearing. This hearing occurs soon after the filing of the petition or after a child has been removed from the home. The precise deadline for this hearing depends on State law, but should occur as soon as possible following the filing of the petition, or upon removal of the child.

The main purpose of the initial hearing is to determine whether the child should be placed in or remain in foster care, or remain with or be returned to the parents pending further proceedings. The critical issues are whether removal was and continues to be in the best interest of the child, whether the agency made reasonable efforts to prevent the child’s removal, and whether in-home services or other measures can be put in place to ensure the child’s safety and allow the child to return home.

Adjudication Hearing

A number of courts use mediation or other non-adversarial dispute resolutions to settle issues in child maltreatment cases. If, however, non-adversarial dispute resolution is not used or is not successful in settling the case by agreement, the case will go to adjudication after the initial hearing. At the adjudication hearing, which is also known as the fact-finding hearing or jurisdictional hearing, the court decides whether the child protective services (CPS) agency can prove the allegations. The CPS attorney presents evidence through the testimony of the CPS caseworker and law enforcement or other witnesses. These other witnesses, if needed, may include expert professional witnesses. Documents such as photographs and medical records may be entered into evidence, and the attorneys for the parents and the child have the right to cross examine any witnesses and to call witnesses and present evidence on their own behalf. The CPS agency needs to present enough evidence to convince the court that the maltreatment alleged in the petition occurred.

If the judge determines that the CPS agency has provided sufficient evidence, he or she will issue a judicial determination that justifies continuing involvement of the CPS agency and the court. If, however, the judge determines that the CPS agency has not provided sufficient evidence, the case may be dismissed and the CPS agency will have no authority to continue its involvement with the family without the family’s voluntary participation.

When the court has determined that child maltreatment has occurred, the judge enters an order finding specific facts regarding the maltreatment and the problems that must be resolved before the child can safely return home. The court will also make determinations as to whether the CPS agency has made reasonable efforts to avoid placement or to achieve reunification, and whether the child’s placement is appropriate given the needs of the child and proximity to the family. The court will also schedule the disposition hearing date and may schedule a permanency hearing to ensure that required timeframes are met. 

Disposition Hearing

At the disposition (or dispositional) hearing, the court decides whether the child and family need help and, if so, what services should be ordered. The order will contain information regarding the services and supports that the family will receive and participate in to resolve the issues that brought the family to the attention of the child protective services (CPS) agency and contributed to the child maltreatment. These services and supports are typically those that have been identified through the family assessment and are components of the case plan developed by the CPS caseworker with the family.

Note that, in some instances, the disposition hearing is held on the same day as the adjudication hearing. When it is not, the disposition hearing should be held within 30 days of the adjudication. 

Review Hearing

Title IV-E of the Social Security Act (SSA) requires that cases be reviewed at least every 6 months after a child has been placed in foster care. While the SSA allows this review to be conducted by a court or another administrative body, a number of States require court reviews, and some courts may require reviews more frequently than every 6 months.

The review hearing provides an opportunity to evaluate case progress and to revise the case plan as needed. They also guide efforts toward achieving permanency for the child. The review also considers the extent of progress that has been made toward alleviating or mitigating the causes necessitating placement in foster care, and may project a likely date by which the child may be returned to and safely maintained in the home, or whether efforts to terminate parental rights are appropriate to allow the child to be placed for adoption.

Review hearings must continue periodically, but no less frequently than once every 6 months by either a court or by administrative review and must determine the safety of the child, the continuing necessity for and appropriateness of the placement, and the extent of compliance with the case plan. They continue until case closure.  

Permanency Hearing

The Adoption and Safe Families Act (ASFA) requires that a permanency hearing occur no later than 12 months from the date the child is considered to have entered foster care. The date that the child is considered to have entered foster care is either the date of the first judicial finding that the child has been subject to abuse or neglect (date of the adjudication hearing) or 60 days from the date that the child was placed into foster care, whichever is earlier.

The permanency hearing is the point at which a decision is made about achieving permanency for the child. This decision will involve establishing the child’s permanency plan that will include reunification with the parent or parents, termination of parental rights and adoption, legal guardianship, or another planned permanent living arrangement. For older youth, the permanency hearing also addresses the services and supports needed for the child to make the transition from foster care to independent living.

Permanency hearings are required no less frequently than every 12 months thereafter throughout the child’s stay in foster care until the child achieves permanency.