The Department Of Children and Family Services is in charge of filing a dependency action. They get what’s called a judicial council form, they fill it out with allegations of abuse or neglect, and they file it. They are the proponents of the action. At the first stage, they have to show that there is a prima facie case to continue to detain these children from this family. It’s their burden of proof, not the parents’. If they make it past the detention stage, it goes to what’s called the jurisdictional stage. It is still their burden of proof; they have a 51% burden of proof.
If the case makes it past the jurisdictional stage and the court finds the allegation true, then the case goes to what’s called the disposition phase. At the disposition phase, the county has to prove their burden of proof that there is clear and convincing evidence to continue to keep these children from their parents and there are no reasonable means to protect them. Their burden of proof to continue to keep children from their parents by the dispositional phase goes up to one of clear and convincing evidence. I never let them forget who holds the burden of proof. They better meet their burden because I’ll be fighting to keep them from meeting it. It’s not just automatic. Parents are entitled to a trial with evidence and due process at every single stage.
What Are My Rights In A Dependency Action?
You have a lot of rights in a dependency action. When they take your children from you, you have a right to a copy of the petition that they file against you before you go to court. You can call and ask for a copy of that petition. Older children are entitled to phone calls home. You are also entitled to be able to have contact with your children. Once you go to court, you are entitled to an attorney, and the children are entitled to an attorney.
Parents have constitutional rights at every single stage of the proceeding; detention, jurisdiction, disposition, and review hearings. At every hearing that is scheduled, you have a right to call witnesses, cross-examine witnesses who testify against you, present evidence on your own behalf, and subpoena witnesses to the courtroom. You have all of these rights at each stage. If you don’t like whatever it is that the social worker is recommending in a report, you have a right to fully go to trial on it. If the judge rules against you at any one of those hearings and you don’t like how the ruling went, you have the right to file an appeal. The very first time that you can file an appeal in a dependency case is after disposition. You can’t file an appeal if you don’t like the detention; you can’t file an appeal if you don’t like the jurisdictional ruling. You can only file the appeal after disposition. Before disposition, you can file what’s called a writ, which is a form of an appeal. You cannot file an appeal until after disposition and you can file an appeal after every review hearing if you don’t like how the judge ruled.
If your case moves through the dependency system and it hasn’t been very successful and you get to the point where they are done trying to re-unify the family and they want to terminate reunification services and move to a permanent plan, you have to, by law, file a writ petition and you have to file a notice of intent to file a writ petition very shortly after that hearing, so you can appeal what happened in court. If you miss that deadline, you’ve waived the appellate issues of all that happened in your case. You have a right to have the appellate court review what happened in your case if you feel that incorrect decisions were made.
If you lose that writ petition, the court will set the case for what’s called a permanent plan for your children. It’s the worst outcome in a juvenile dependency court proceeding. They will either place your children in long term foster care, establish a guardianship with a different adult, or adopt your children out to another adult. Once the adoption is final and 60 days have passed with no appeal, the adoption becomes permanent.