Will I be able to visit my child if they are placed in Foster Care?
Yes, the law requires that you are permitted to see your child at least once every two (2) weeks unless the visits would place your child in imminent danger. Most of the time, the Court will order that CPS/ACS provide visitation much more often than once every 2 weeks as well as provide you with regular telephone contact with your children.What can I expect after the initial court appearance?
Child protective proceedings are very complex and can drag on for months or even years. There is no formula as to how a case like this can proceed. Books could be written about this entire process so there is no way to fully explain this area of the law on our website. However, all child protective cases follow the same general path:
The first few appearances will be simply conferences between your attorney and the attorney for the child as well as the attorney for CPS/ACS and the Judge so all of the parties can attempt to determine visitation and other arrangements for contact with your children while the proceeding is pending, and also so that CPS/ACS can suggest various “services” (i.e. parenting classes, substance abuse, anger management, etc…) to expedite the process of returning your children, and finally, to negotiate a resolution to your case.
A resolution could be a full withdrawal (dismissal) of the Petition by ACS/CPS but this is unlikely unless ACS/CPS has no evidence with which to proceed.
The parties could agree to an ACOD. In cases involving relatively minor allegations this is sometimes used as a method to resolve the matter. Essentially, the matter is placed on hold for a period of 1 year. During that 1 year, you agree to abide by certain conditions. Assuming you adhere to all of the conditions the petition will be completely dismissed after the 1 year period has expired.
Most of the time, if a case is going to be resolved without a trial the parties agree upon some kind of full resolution other than a withdrawal or ACOD in which both the finding entered by the Court as well as the disposition (see below for more info) are agreed to in advance (it is sort of like a plea bargain in a criminal case).
After a series of conferences, if no resolution has been agreed to there will be a fact-finding hearing.
The fact-finding hearing is just like any other trial. The Petitioner (ACS/CPS) must present their evidence first. The Respondent's (you) attorney gets an opportunity to cross-examine all of the Petitioner's witnesses. The Respondent then gets to put on their own case and the Petitioner's attorney gets to cross examine your witnesses.
If the Judge finds that you have committed the allegations in the Petition by a preponderance of the evidence the allegations in the Petition will be sustained and a finding of either abuse, neglect or both will be entered against you.
Depending upon the circumstances, the Judge may also enter a finding of Aggravated Circumstances:
• A finding of aggravated circumstances means that the Judge has found by clear and convincing evidence that the child was either severely abused, repeatedly abused, or permanently neglected.
If the Judge does not find that the allegations were proven by a preponderance of the evidence the petition will be dismissed and all of the records will be sealed.
Once a finding is entered against you, the record will be sealed from the general public but the record will be entered into the State Central Child Abuse Registry and remain there until your youngest child is twenty-eight (28) years old. If you have a job which involves children your employment opportunities may be significantly impaired as a result of this type of finding.
If a finding has been entered against you, the Court will then conduct a Dispositional Hearing:
Essentially, this hearing is held to determine what the Court should do as a result of the finding that has been entered against you.
At the dispositional hearing the Court will consider many factors including:
• The nature of the findings against you (what exactly the Court found you did to either neglect or abuse your child).
• The best interests of the child.
• The current needs of the child.
• The present fitness of the parent.
• The family's prior involvement with CPS/ACS.
• If the child has already been returned to you the Court will also consider whether or not you have complied with the terms and conditions upon which the child was returned to you.
• If the child remains out of your home the Court will then consider the efforts you have made towards resolving whatever problems caused the finding of neglect or abuse to be entered in the first place (i.e. have you successfully completed substance abuse treatment, anger management, etc…)
The Court has enormous discretion to order a wide variety of possible dispositions. The most common include:
• Issuance of an Order of Supervision with or without an Order of Protection: An Order of Supervision basically means that your children will be released to you but you will be subject to the supervision of CPS/ACS for a period of one (1) year. During this 1 year period you must comply with all of ACS/CPS reasonable requests (such as random drug tests, home visits, completion of various self-help seminars, etc…). CPS/ACS will be required to file progress reports with the Court in order to keep the Court updated with respect to your progress. If ACS/CPS believes that you still require supervision they may apply to the Court to extend the Order of Supervision for an additional year.
• In addition, the Court may issue an Order of Protection on behalf of the child which orders you not to engage in certain behaviors (such as consuming alcohol) in the presence of your child. Violation of an Order of Protection can subject you to jail time in addition to CPS/ACS filing additional petitions against you.
• Placement of the Child with a Relative: The Court can order that the child is to be temporarily placed into the custody of a relative. During this period of time the Court will set an Order with respect to your rights to visit your child and maintain telephone and other contact as well. The temporary placement lasts until at least the next Permanency Hearing.
• Placement of the Child with ACS/CPS: If no qualified relative is available the Court can order that the child be temporarily placed with an agency sponsored by ACS/CPS such as a group home or Foster home. The temporary placement lasts until at least the next Permanency Hearing.
• Order of Custody to another relative or otherwise suitable person: The Court can only order this remedy with the consent of the Respondent. Upon such an Order, the Respondent can no longer be subject to an Order of Supervision or receive any type of services from ACS/CPS. If the Respondent consents to giving custody to another person and the Court determines that it would be “in the best interests of the child” and “that the safety of the child will not be jeopardized if the Respondent is no longer under supervision or receiving services” the Court can grant an order of custody to another relative or other interested party.Permanency Hearings
• Beginning at eight (8) months after the Petition is filed against you, and every six (6) months thereafter, for so long as your child remains in Foster Care, the Court must hold a Permanency Planning Hearing to determine if your child will remain in Foster Care or be returned to you.
• Permanency Planning Hearings are just like they sound, it is a hearing at which the Court attempts to plan for the permanent placement of your child.
• The law and procedure behind these hearings is far too complex to explain on a website, however, in general the hearing is held so that the Court can determine the placement of the child for the next six (6) months.
• The hearings continue to be held until “permanency” is established.
• This would mean that the child has either been returned to your care and custody, a final order of custody is granted to another relative or interested party, or the child has been adopted by another person.
Permanent Termination of Parental Rights
A proceeding to permanently terminate parental rights is exactly what it sounds like. The Petitioner is asking the court to terminate your parental rights so that your child can be placed for adoption. Except in rare circumstances, only CPS/ACS can file such a petition.
In order to permanently terminate parental rights the Court must find by clear and convincing evidence
Abandonment of the Child
Abandonment is found when: the parent demonstrates an intent to forego his or her parental rights and obligations as demonstrated by his or her failure to visit the child and communicate with the child or agency (CPS/ACS) although able to do so and not prevented or discouraged from doing so by the agency.
• Basically, if your child is placed into foster care as a result of a Child Protective Proceeding and you fail to visit or contact the child or to take advantage of any services (i.e. substance abuse treatment, anger management, etc…) offered by CPS/ACS you are deemed to have abandoned your child.
Permanent Neglect of the Child
In order for a finding of permanent neglect to be established, the court must find by clear and convincing evidence
• The child is in the care and custody of an authorized agency (CPS/ACS).
• The parent of that child has failed to maintain contact with the child or plan for the future of the child for a period in excess of one (1) year.
• This is basically the same standard as abandonment except that under these circumstances, even if the parent maintains contact with the child, if the parent fails to plan for the future of the child (i.e. find appropriate housing to reside with a child, find employment, get into a substance abuse program, enter other parenting classes, etc…) the parent can be found to have permanently neglected the child.
• The parent was physically and financially able to maintain contact and plan for the future of the child.
• The foster care agency used diligent efforts to encourage and strengthen the parental relationship.
• This is very important. If the agency with which the child was placed did not assist the parent in completing services and did not continue to attempt to engage the parent in contacting their children and explaining to them the importance of utilizing the services recommended by ACS/CPS the petition to terminate parental rights will be dismissed even if the parent has not availed themselves of the services offered to them.
Mental Retardation of the Parent
• If the court finds that a parent suffers from mental retardation that is of such a serious nature that the parent cannot care for the child presently or for the foreseeable future the Court may order a Permanent termination of parental rights.
Mental Illness of the Parent
• If the court finds that a parent suffers from mental illness that is of such a serious nature that the parent cannot care for the child presently or for the foreseeable future, the Court may order a permanent termination of parental rights.
Severe and Repeated Abuse of the Child
• The court may permanently terminate parental rights if it finds by clear and convincing evidence
that the child has either been severely abused or repeatedly abused defined as follows:
• A severely abused child is a child found to be abused as a result of reckless or intentional acts of the parent committed under circumstances evincing a depraved indifference to human life which results in serious physical injury to the child.
• There are other ways that a finding of severe abuse could be entered as well such as murdering a child in your care or custody, prostituting a child in your care or custody and other very serious acts.
• A repeatedly abused child is a child who has been found to be abused by a parent who has already been found to have abused that child within the previous five (5) years.
• There are several other additional criteria which are beyond the information that is provided on this website.
• CPS/ACS has the option but is not required to make efforts to reunite a child with their parent once a finding of severe or repeated abuse has been entered and there is no requirement for ACS/CPS to prove substantial efforts to reunite a child in a termination of parental rights proceeding based upon severe or repeated abuse provided ACS/CPS has made a motion to relieve themselves of the obligation to promote reunification of the parent and child.
Surrender of the Child
• If you voluntarily surrender your child, your parental rights will be permanently terminated.
For more information, see Surrender of Child Adoption.
The attorneys of Simon & Milner in Valley Stream, New York are here if you have questions about parental rights. Call (516) 561-6622
or (800) 807-5616