Protective Custody

When a child discloses sexual abuse, both Law Enforcement and Department of Human Services/Child Welfare (DHS/CW) investigate the case. The goal of Law Enforcement is protection of the community through prosecution and conviction of the offender. The goal of child protective services is maintaining unification of families. However, if the child is not safe in the home, both are authorized to remove the child from the home for protection of the child. Child sexual abuse is complex and requires a varied team of professionals, working together in the best interest of the child victim and other family members following disclosure.  

The mandate of DHS is to protect children and can be found in state and federal statutes. Typically DHS intervenes when the offender is the caregiver of the child. Upon receiving a report, DHS has a specified time frame to investigate, usually within 24-48 hours, to determine maltreatment of a child. The social services specialist will confer with other professionals and with collateral contacts (e.g., parents, other children, neighbors). If the child is in danger, DHS takes steps to insure the safety and protection of the child. The first choice is the child's remaining in the home and removal of the offender. When the child's safety is not probable in the home, then the child must be removed and placed in another relative's home, foster care, or a court-approved facility.  The investigation involves law enforcement, DHS, physicians , and mental health professionals. The child may be evaluated at a Child Abuse Assessment Center.

Following the report to law enforcement or disclosure made by the child, law enforcement and DHS will visit the child in the home and/or in the school and obtain sufficient information to determine direction in the case. Prior reports of abuse are factors, although not determinative. If the home is not "minimally adequate" to meet a child's needs, if the offender cannot be arrested and refuses to leave the home, if the mother is unsupportive and angry at the child, if domestic violence  and/or substance abuse is present in the home, or if the child requests removal from the home pending the investigation, it is in the child's best interest to be removed from the family home until the Trial and/or other determinations are made regarding the case and the child's safety. 
Maintaining the child's safety also includes keeping the child from family members that may not believe the abuse disclosure and/or are pressuring the child to recant.

A DHS social service specialist will interview family members to assess willingness and ability to protect the child. A determination will be made whether the abuser, if he is a family member, will be removed from the home, or if Protective Custody of the child needs to be considered. DHS will work closely with the Law Enforcement. If the child appears to be in immediate danger, Law Enforcement will place the child in protective custody based on independent determination that the child's health, safety, and welfare is jeopardized. DHS/CW works with Law Enforcement and makes arrangements for the child to be placed in a licensed facility, the care of relatives, or another placement authorized by the court. 

Shelter Care Hearings will determine whether the child will remain in shelter care until the Dependency Hearing. The Shelter Care Hearing occurs within 72 hours (excluding weekends and holidays) of the child's removal from parental care. Reasonable efforts must be made to provide notice of the Hearing to the parent, guardian, or legal custodian. A volunteer CASA, Court Appointed Special Advocates); guardian ad litem; or attorney for the child is often appointed at this court hearing. The court will issue an order at the Shelter Care Hearing regarding the child's return home or continuing in temporary care. The child will NOT be returned home if the parent or guardian is unable to care for the child or if the child's return home presents a serious threat of substantial harm to the child. The court will then issue an order that the child be placed in Protective Custody. Shelter Care orders are effective for 30 days. If the court orders the child to remain in Protective Custody, another hearing will be scheduled. 

Child Welfare will participate in an investigation with Law Enforcement. A determination will be made that the case is:
  • Founded - Determination that the allegation of abuse is justified by evidence produced during the investigation, and the child has been and is at risk of abuse.
  • Unfounded - Determination that the investigation did not produce enough substantial evidence to conclude the child has been or is at risk of abuse.
  • Unable to determine - Not enough information was produced during the investigation to make a decision that the child is or has been at risk.

If the case is founded, and abuse occurred in the home, a determination will be made regarding the non-offending parent's "failure to protect." The custodial parent will be assessed regarding ability to protect the child from further abuse and maintain the safety of the child in the home. If the parent appears unable physically or emotionally to appropriately care for the child, Child Welfare will file a Dependency Petition with the court, alleging types of harm done to the child. Dependency Fact-Finding Hearings may be scheduled regarding allegations of the Dependency Petition.

If a parallel dependency case is before the court, the child victim may be assigned both an attorney to represent her legal rights and an independent child advocate. The parent appears before the court regarding ability to provide effective parenting. Child Welfare must produce a plan concerning placement and reunification services. The plan and disposition order is sufficiently detailed that all parties are aware of what remedial actions and compliance is expected of the parent. Ongoing services are provided to the child and the parent now involved with Child Welfare.    

A Dependency Fact-Finding Hearing or trial will consider the allegations stated in the Dependency Petition and will occur within 75 days of filing the dependency petition unless a continuance is granted by the court. A Dependency Disposition Hearing
usually occurs within 2 weeks after dependency is established. The purpose is to determine the child's placement, visitation, and services offered to the child and family.  DHS/CW provides a plan to the court regarding placement and reunification services. The plan and disposition order will provide details regarding actions and services required by the parents. These may include attendance at parenting classes, participation in substance abuse or other counseling, and making sure that the child attends medical and counseling appointments.  



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