In Arizona, dependencies need not be brought by the State. They can be initiated privately.(1) The Model Court has developed special procedures for dealing with private dependencies. The basic model of the Pre-hearing Conference and the PPH remain the same. However, the roles of the respective parties are somewhat different. So too, are the behaviors.
Why would anyone bring a private dependency?
Most private dependencies are brought
by family members: grandparents, aunts and uncles, sometimes even non-custodial
parents. Sometimes, these folks have suddenly inherited a child -- Mom
has been jailed or hospitalized; the child is a runaway; the child has
been abandoned. Many private dependencies are brought because of a sincere
concern for the welfare of a child. The parent may have a drug problem
or a psychiatric disorder. Some private dependencies appear to be brought
as part of an on-going family feud.
Whatever the reason, the basic goal of a dependency remains: safety of the child and reunification of the family. As you might imagine, reunification may be more difficult in a private dependency. First, private families may not have access to the array of services and resources available to the State. Second, family dynamics may make open acknowledgment of family problems quite difficult. Third, there may be no motivation on the part of the persons with temporary custody of the child to facilitate reunification.
In most private dependencies, the petitioner is also the placement. The petitioner probably obtained temporary custody as part of the temporary court orders. Since the filing of the petition and the application for temporary custody were made ex parte by people to whom the parents were probably very close, there is a huge potential for anger, resentment and a feeling of betrayal by the parents.
Role of Child Protection Services in
a Private Dependency.
Although not a party at the outset, CPS
may still play a major role in the Model Court portion of a private dependency.
A CPS intake worker will be assigned to prepare a Court report. The report
will provide a background and safety check of the current placement and
will investigate the underlying allegations in the private petition.
If CPS believes that a dependency exists which requires state intervention, it will so state in the report. CPS will then move the Court to be substituted as the petitioner in the case. If CPS is substituted, then the case will proceed as a regular dependency proceeding with CPS acting as the petitioner. CPS can proceed on the allegations in the original petition or may choose to file a new petition.
If CPS chooses not to be substituted, then the intake worker will file the court report - giving a copy to all parties. The intake worker will not normally attend the Model Court Hearing unless CPS is leaning towards being substituted.
If the Court believes that further investigation is warranted or further information is needed, the Judge may order CPS to continue its investigation and/or to have its worker present at the next hearing.
It is very important to note that, if CPS chooses not to be substituted, CPS may still be able to provide voluntary services to the family. As the child's attorney, you may want to contact the CPS intake worker before the Model Court block to see what services might be available to the family.
Even if CPS decides not to be substituted. The Juvenile Court can nevertheless order CPS to be substituted as petitioner if the Court believes that the circumstances warrant CPS case management. We should consider that option carefully even if CPS does not want to join in.
Special Considerations for the Child's
Attorney
A child's attorney needs to approach matters
from a slightly different point of view in a private dependency. Consider
the following:
1. In a CPS case, the Clinic has blanket permission to talk with the intake worker. In a private dependency, we must obtain permission of the petitioner's attorney before discussing any matter other than scheduling a visit with our client. If we cannot talk with the petitioner, we have lost two sources of information at once - the person who brought the proceeding and the placement.
2. The petitioner may have no attorney. Under the dependency statutes only the parents and children are entitled to appointed counsel.(2) Many private petitioners cannot afford counsel. Lack of a lawyer may put an extra burden on the child's attorney.
a. If a petitioner does not have a lawyer, the petitioner may naturally turn to the child's attorney for advice. We must be very careful to remind the petitioner that the Clinic is the independent attorney for the child - not the attorney for the petitioner. Even if our position is in 100% agreement with the petitioner's position, we must be careful to make our role explicit.
b. A pro per(3) petitioner may not have the wherewithal to properly present the petition. If our positions are in agreement, we may have to take responsibility for presenting the case. This will be especially important if our client's position is to remain in placement care and the parent requests a temporary custody hearing. It may be up to us to make the initial probable cause showing.
2. When we visit our client, there is a greater need for privacy as the placement is likely one of the litigants.
3. We need to be mindful of stronger than usual feelings on the part of the litigants. It is one thing for the State to intervene in a family. It is quite another for the family to initiate its own internecine dispute. The Pre-hearing conference needs to be handled with those emotions in mind. It may be harder to get down to business of reunification.
4. It may be much harder for our clients to make choices. As in #3 above, it is one thing for a child to choose between his or her parents and foster care. It is quite another to have to choose between parents or between parent and grandparent.
5. It will be much harder for our client to manage this adversarial proceeding. The conflict between the petitioner and the parents will be much more intense for our client than a CPS dependency. The client will be observing conflict between loved ones as opposed to conflict with a bureaucracy. Observing loved ones in conflict can be terribly damaging to a child. We may need to be a little more protective of our client without overbearing the client's right to participate fully.
6. Because of personal conflict or conflict with the goal, the petitioner and parent may not be able to work together for reunification.
7. Because of cost constraints, not all needed services will be affordable by the private parties.
8. Visitation - especially supervised visitation - may require more careful management with CPS transportation, supervision, and case management resources.
Because of all of the above, we should
carefully consider whether or not we want to request that CPS be ordered
to substitute as petitioner regardless of the Agency's position. We also
should make sure that we know if CPS can and will provide voluntary services
if the Agency is not substituted. Finally, we must take a much more active
role in developing and implementing the case plan.
1. ARS § 8-841(A) "Any interested party may file a petition to commence proceedings in the juvenile court alleging that a child is dependent."2. ARS § 8-821
3. Pro per is termed used in the Juvenile Court to refer to a person representing him or herself. Other jurisdictions may use the term "pro se. "
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