Parents are entitled to a trial within 90 days of removal of the child.(1)For good cause, the trial date can be extended for an additional 30 days. Any further extensions must be approved by the Arizona Supreme Court.(2) At the trial, CPS must prove the allegations in the petition and demonstrate that the allegations, if proven, meet the requirements of the dependency statute. CPS must prove the allegations by competent evidence. Hearsay, with certain specialized exceptions, is not admissible. The burden of proof is by a preponderance of the evidence except in matters involving Indian children where the burden is clear and convincing evidence.(3)
Each party has the right to call witnesses, offer exhibits, and to cross examine the witnesses for the other side. Dependency trials follow the general procedures set out under the Arizona Rules of Civil Procedure. There are specific Juvenile Court rules and statutes, however, which provide for a more streamlined and informal process than other types of civil litigation.(4) For example, formal discovery is rarely used. Instead, the trial is conducted with a looser regard to formalities.
The Court may make a decision either orally after the trial or by an in-chambers minute entry. If the court finds that a dependency has not been established, it will dismiss the petition and immediately return the child to the parents. If the Court finds that a dependency has been proven, then the Court will hold a dispositional hearing to determine what happens next.(5)
The dispositional hearing is an evidentiary hearing to determine what to do about the dependency. The Court has a number of dispositional alternatives available by statute. These include options to either place the child back in the home or with relatives or to place the child in foster care. Relative placement is the preferred placement option. The available dispositions also include providing remedial services to the child and to the family to promote reunification.(6)
The key decision by the Judge at a disposition hearing is to establish the case plan. A case plan is the blueprint by which the State hopes to reunify the family. The case plan will identify problems to be addressed and offer an individualized plan to address them. Part of the case plan will involve the parents completing certain tasks such as parenting classes or random urinalysis. Part of the case plan may involve the state supplying therapeutic or medical services or even providing supervised visitation.
In theory, if a parent follows and completes the case plan, the child will be returned and the dependency will be dismissed. On the other hand, failure to complete the case plan may be used as proof that the parent's rights should be permanently terminated. Thus the case plan takes on enormous importance. It is critical that the case be a well conceived and intelligent blueprint for each particular family. One size does not fit all.
Over the next several months, all the parties are expected to work to implement the goals and tasks of the case plan. Periodically the Court will reevaluate the situation at a hearing called a dependency review.(7) The statute requires that the reviews be held every six months. Under the model court procedures, however, reviews are usually schedule 90 days apart.
At the dependency reviews, the Court will assess the progress of the case plan. The court may modify the plan if that is deemed appropriate. If the parents are not making enough progress on their case plan, the court may take action to impress on the parents the importance of completing the case plan if they want their children returned home.
If the court feels that the parents may not be able to succeed in resolving their parental problems, the court may approve a concurrent case plan of severance and adoption. A concurrent plan allows the State to start the process of planning to terminate parental rights while continuing to offer remedial services. The idea behind the concurrent case plan is to plan for the contingency of the parent's failure enabling the State to the find the child a permanent home without unnecessary delay.
In addition to dependency reviews in the Juvenile Court, whenever a child is in an out of home placement, an independent organization called the Foster Care Review Board will conduct periodic hearings to assess the status of the child. The Foster Care Review Board operates under the auspices of the Arizona Supreme Court. The FCRB conducts reviews every six months and makes recommendations to the Juvenile Court concerning such matters as the efforts made by the Agency to implement the case plan and the progress towards achieving a permanent plan for the child.(8)
At the end of one year, the court must hold a hearing to determine a permanent plan for the child. The permanency planning hearing comes in two phases: the initial permanency hearing and the final permanency hearing.(9)
At the initial permanency hearing the court must first determine if it is safe to return the child to a parent.(10) The statute requires the court to determine whether "the return of the child would ... create a substantial risk of harm to the child's physical, mental, or emotional health or safety." The statute further says that evidence that the parent did not complete the case plan is deemed evidence that "return of the child would create a substantial risk of harm to the child."
The Judge will then conduct a formal hearing in a manner similar to that of the dependency adjudication. This hearing is called the permanency hearing.(11)Each party has the right to call witnesses, to introduce documents and to cross examine witnesses. If the Judge determines by a preponderance of the evidence that the child cannot be safely returned, then the Court must order that the state finalize a permanent case plan. That case plan will be presented at a second hearing scheduled no more than 120 days from the date of the initial permanency hearing at which a final plan will be put in place.
The final plan may be either severance and adoption, permanent guardianship, or long-term foster care. Because of the limited options available to the Court, the Judge must order the discontinuance of reunification services. Essentially, unless the parent is successful at the initial permanency hearing--that is, unless the child can be returned to the parent--the State will be relieved of its obligation to make reasonable efforts to reunite the family. Only in the most extraordinary of circumstances will the state continue to try to assist in family reunification after the initial permanency hearing.
If the Court confirms a plan of severance and adoption, then a motion must be filed by the state to commence severance within 42 days of the final hearing. If the plan is for permanent guardianship, the State has 10 days to file the motion. Any plan for long term foster care can be made only if there is a finding of extraordinary circumstances.
The statutory grounds for a motion for
severance and adoption or for a permanent guardianship must be proven by
clear and convincing evidence and be consistent with the best interests
of the child. If those motions are successful, the dependency will terminate
upon the completion of the adoption or the guardianship. Otherwise the
dependency will continue until the child reaches the age of 18.
1 ARS §8-8432 Id.
3The Indian Child Welfare Act or ICWA greatly modifies the state's rights and responsibilities for Indian children. The standards for removal, for finding a dependency and for terminating parental rights are different for Indian children. See section on ICWA infra.
4 See, generally, Az.R.Juv.Pro.
5ARS § 8-845.
6 ARS § 8-846.
7 ARS § 8-847.
8. ARS § 8-515.03 see section on Foster Care Review Board
9 ARS §8-861et seq.
10 ARS §8-861.
11 ARS §8-862
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