What is a Dependent Child?
There are many ways that the government may become involved with your family. Most commonly, they are responding to a call to the hotline (anonymous hotline for abuse/neglect), and/or as a result of law enforcement responding to a situation involving children. When The Department of Children and Families (DCF) files a Shelter and/or Dependency Petition, they must allege that a child is:
Abandoned, abused, neglected
Surrendered voluntarily for adoption
No parent or legal guardian capable of giving care
Substantial risk of imminent abuse, abandonment or neglect
Sexually exploited and no parent/guardian capable of giving appropriate care
Each of these terms is defined by law and can be applied to many different kinds of situations. You can find the laws that regulate dependency cases in Florida Statute section 39.
Procedures
There are many paths a dependency case can take, and not all will apply to every case. Some of the possible hearings or legal processes you may have are discussed here:
Shelter Hearing
If the State physically takes your child in what they deem to be an “emergency” situation, they may be proceeding with a legal procedure called “shelter”. If this happens, there should be a hearing (a “shelter hearing”), typically within 24 hours of their removal. At this hearing, the judge will determine whether the State had probable cause to remove the children and, if so, where they should be placed. Typically, the court will try to place children with family or friends (the “least restrictive setting”), if possible. A person with whom a sheltered child is placed may need to submit to a home study (done by DCF to ensure the home is suitable for the child) and comply with a safety plan. If this kind of placement is not immediately available, the court may place the child in foster care.
The initial placement can be reconsidered by the court at any stage throughout the proceedings. If the child is placed outside of the home, or away from one parent, the court will typically order visitation with specific conditions (supervised, unsupervised, etc.). The court can also order a parent not living with the child to pay child support or specific expenses (like medical or education expenses) while the child is sheltered.
Petition for Dependency
Separate from shelter, which deals only with the placement of the child for a specific period of time, a petition for dependency seeks to declare a child dependent upon the State. If the child was sheltered outside of their home, this hearing should happen within 21 days. If the child remains at home, then the hearing must take place “within a reasonable time period”. The Petition is typically filed by the Department of Children and Families, but can be done by a private party in some rare circumstances.
The Petition will state the specific grounds for declaring the child dependent. Not all of the allegations in the Petition ultimately need to be proven, and they will likely come from many different sources, some possibly anonymous. The parents will have an Arraignment within 28 days of the Shelter Hearing. The purpose of an Arraignment, similar to criminal proceedings, is to inform the parents of the claims against them in the Petition, and allow them a chance to admit or deny the claims.
Case Plan
If the Court makes a finding of dependency, then the placement of the children, the goal for the family, and the services the family will need in order to reach those goals, will be addressed with a Case Plan. Goals of a case plan may include (in order of desirability) : Reunification (with parent(s)), Adoption, Permanent Guardianship, Permanent Relative Placement, or Another Planned Permanency Placement. (If child remains in home, goal will typically be “maintain and strengthen”).
At times, the Case Plan may include more than one goal (this is called “concurrent planning”). Either option is a possible outcome - they are basically planning for the worst and hoping for the best.
A Case Plan will include tasks geared toward the stated goal(s) and will seek to provide services to the child and parent(s) that will help them to accomplish these goals. The tasks in the case plan should be those that can reasonably be completed within one year.
Mediation
Mediation is typically the first place that all parties get together to work on the terms of a Case Plan. There may be several parties involved in a dependency case, which is one thing that distinguishes these cases from criminal cases. Parties present may include each parent, their counsel, counsel for DCF, a case manager from DCF, a Guardian ad Litem and a Guardian ad Litem Attorney. There will be no judge present, but instead a mediator will facilitate the conversation. The mediator is an unbiased party who does not advocate for either side, but attempts to help the parties come to agreements. The conversations that take place in mediation are confidential, so the parties may feel free to openly discuss any relevant issues relating to the Case Plan. At the end, the mediator will write a report that outlines what the parties agreed upon, and whether or not they have reached an agreement.
Consent
After a Case Plan is created by DCF, a parent may consent to the plan at any time. In many ways, this is similar to a plea agreement in a criminal case. Similarly, agreeing to a Case Plan is somewhat like a probation sentence. The parent will agree to complete certain tasks, such as random urinalysis (drug or alcohol testing) and substance abuse counseling, mental health evaluation and counseling, obtain stable housing and income, attending domestic violence evaluations, or working with a parenting coach or attending classes. If you enter into a consent, you are agreeing to comply with the Case Plan and you are waiving your right to contest the claims in the dependency petition.
Adjudication
The Court can choose to withhold adjudication or to adjudicate a child dependent. If the Court withholds adjudication, this means that the child can safely remain in the home with the parent, but that the Department will continue supervise the family while they engage in services. If the child remains in an out-of-home placement, then the child must be adjudicated dependent at this stage. If adjudication is withheld, and the court later finds that the parent is not compliant with the court’s terms, the court can convert the withhold of adjudication into an adjudication.
Do I have to Consent to a Case Plan?
No person is required to consent to a dependency petition and case plan and can deny the allegations in the petition. If there is no consent, then there will be an Adjudicatory Hearing, which is somewhat like a trial. There are no juries in dependency cases and the judge is always the fact-finder. It is then the responsibility of DCF (or the moving party if it is a private petition for dependency) to establish, by a preponderance of the evidence the allegations put forth in their petition. Instead of reasonable doubt, civil courts use the preponderance standard. This is a lower standard than reasonable doubt and requires only that the judge determine that it is “more likely than not” that the allegations are true. The other parties will also have the opportunity to present their evidence and the judge will either dismiss the petition, withhold adjudication, or adjudicate dependent.
You will be informed at each hearing that a refusal to engage in services (or comply with the case plan) can result in the termination of your parental rights. This is true. However, you also have the opportunity to change your mind and enter into a case plan, no matter how many times you have rejected it, at any point prior to the initiation of TPR (termination of parental rights) proceedings.
After Consent - What’s Next?
Judicial Review
These hearings will take place every six months and basically act as status checks. The parent’s progress with the case plan, as well as the status of the child’s placement, will be reviewed at these hearings.
Permanency Hearing
The first permanency hearing will be held within twelve months of the removal of a child or their adjudication of dependency and every twelve months thereafter, as long as the court retains jurisdiction.
Reunification
At any point, the Court can order a child be reunified with their parent (either or both). This should be done when the situation that caused the dependency petition in the first place have been remedied to the extent that the child’s safety/well-being is no longer endangered. The Court should return the child to the custody of their parents at any point once it is determined that they have substantially complied with their case plan, and that reunification will not be harmful to the child.
In making these decisions, the Court should focus on the conditions that originally led to the dependency of the child. The Court will also consider the stability of the child’s current placement, the preference of the child (where appropriate- generally an older child), the recommendation of the current custodian, as well as the recommendation of the Department and the Guardian ad Litem.
Once reunification has been granted, the court will retain jurisdiction for at least six months. After the six-month period has ended, the Court will conduct a review and determine whether jurisdiction can be terminated.
What Happens if I Don’t Comply with the Case Plan?
Termination of Parental Rights
After a child has been adjudicated dependent, if the court determines that the parents are not substantially compliant with the case plan- or some other aggravating factors exist- the Department may initiate a Petition to Terminate Parental Rights.
Sometimes, the Department may skip the first step entirely and not even offer a case plan, even where the parent is willing, and move straight to termination proceedings. This is called “expedited TPR”.
Some of the statutory reasons for termination of parental rights include:
Voluntary waiver of parental rights
Abandonment of child (parents cannot be located)
Parental actions that continually threaten the life, safety, or well-being of the child, even with services
Incarceration of parent for a term that constitutes a significant portion of the child’s life as a minor; or incarceration of a parent for certain serious offenses
Case Plan with the goal of reunification has been filed but parent continues to engage in the harmful behaviors, to the detriment of the child
Non-Offending Parents
Any known parent must be notified of dependency proceedings, and DCF must show that they are making reasonable efforts to locate both parents. If the non-offending parent lives out of state, this can complicate things, even where they are willing to take in the children. There are certain requirements under federal law that must be fulfilled, and this can take several months.
If the parents were living together at the time the dependency arose, and only one is facing allegations in the Petition for Dependency, this can also affect the parent’s rights. If the parents are not residing together, and the non-offending parent wants to take placement of the child, they will still need to comply with a safety plan, which can still seem like an imposition or a punishment.
Both parents of a child subject to a dependency proceeding (including a non-offending parent) have a right to counsel at all stages of the proceeding. Although you may waive your right to counsel at any time, it may be wise to have someone experienced present to help advise you through this complicated process. Attorney Lori Wurtzel has a successful record of advocating for parents involved in dependency proceedings and understands the procedures and laws that will help to protect your rights. Contact our office for a free consultation so we can walk you through the process and explain what we can do to help.