TEMPORARY PROTECTIVE
CUSTODY HEARING
Shelter Hearing
Advisement Hearing
Preliminary Protective Proceeding
Detention Hearing
Emergency Custody
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Law Enforcement may remove a child without a
court order if the child is seriously endangered or
seriously endangers others.
The Department may remove a child with an ex
parte court order, if necessary because there is a
danger to the child’s life or health.
The court may also issue ex parte protective orders,
without removing the child.
Deciding whether to take emergency
custody

7.304.3 Out-of-home placement criteria
 In
deciding whether to remove a child, the Department
looks at 3 criteria. All three are required to be met
prior to removal.
Criteria 1
Under Volume 7, a child can be at risk for out of placement
because of:
 Abandonment;
 Abuse/neglect;
 Domestic violence;
 Caretaker unable to care for child because of substance abuse,
mental illness, disability, illness, homelessness;
 Child beyond control of parent;
 Danger to self or others;
 Infant or young child of teen in placement;
 Delinquency;
 Relinquishment or termination of parent rights;
 Child returning home from placement.
Criteria 2
Assess LEVEL of risk for removal (Volume 7.202.5)
 If
imminent:
 Then
determine child/family strengths
 And identify appropriate services (reasonable efforts)
 If services not available, are unsuccessful, or exhausted,
removal may be considered.
Criteria 3

Removal appropriate when placement is best choice
of available options
 Volume
7.304.5
 BUT must continue reasonable efforts to resolve
conditions which led to imminent risk
Reasonable Efforts

Reasonable efforts:
 Identify
appropriate parent/relative/caretakers
 Assess the parent/r/c ability to protect
 Ability to assist the parent/r/c in accessing services.
Temporary Protective Custody (TPC)
Hearing


C.R.S. §19-3-403; 405
When the Department has taken emergency
protective custody of a child, a TPC hearing is held
to determine whether that custody should continue
with the Department or whether the child should be
returned to his or her parents.
Emergency Protective Orders


If the Department did not take custody on an
emergency basis, but instead sought ex parte
protective orders, this hearing is held to modify or
continue those orders.
If the Department has not sought any ex parte
orders, either custody or protection orders, this
hearing is the first chance to make such requests.
Burden of Proof
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Department has the burden of proof
Standard for a non-Indian child is whether the
custody or protection order is appropriate and in
the child’s best interests. C.R.S. §19-3403(3.6)(a)(V).
Any probative evidence admissible
Burden of Proof Under ICWA
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Indian child
Different standard for removal for an Indian child
Who is an Indian child?
 Member
of an Indian tribe; or
 Eligible for membership
and is the biological
child of a member.
Burden of Proof Under ICWA

Standard for removal:
Active Efforts
 Child must face serious emotional or physical damage if left
in the home
 Standard of proof is clear and convincing evidence

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
Including testimony of a qualified expert witness.
Placement preferences if child is removed:
Child’s extended family
 Member of child’s tribe
 Member of another tribe
 Foster care

Timing
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72 hours after removal
72 hours after protective orders entered
Excluding weekends and holidays
NOT jurisdictional
Relatives
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Preference to relatives
Discretionary
Temporary custody or placement
Relative must be willing, capable, and appropriate
Child’s best interests
C.R.S. §19-3-403 (3.6) (a) (III)
Relatives

How do you know if they are appropriate?

CBI and Trails/state central registry check (initiated within a
day)


Federal law under the Adoption and Safe Families Act, codified in
Colorado, at C.R.S. §19-3-406, eliminates people with certain
convictions from consideration for placement. These include child
abuse, certain crimes of violence, unlawful sexual behavior, domestic
violence, and drug related offenses within the past 5 years.
People with certain other convictions MAY be approved by the court,
but it is discretionary.
Have space/provisions
 Can be protective
 Will facilitate parent/sibling contact

Relatives
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Appropriate also often means the Department approves of
placement with them.
Volume 7 regulations permit emergency placement:

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The relative does not have to be certified prior to placement
Placement can be done on emergency basis – “visitation basis”
Kin are eligible for supportive services, including medicaid, child care,
family preservation services, and core services to make placement
viable.
Relatives
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
Volume 7.304.2
Placement with kin can be voluntary.
Kin are entitled to foster care payment if they become licensed.


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It is a little known secret that kin are entitled to foster care payment. If
they would like to receive payment, they can. It is NOT a need based
calculation. The catch is that they will need to become certified, just as
other foster parents, and some relatives do not want the additional
burden of attending training classes and following all the department
rules and regulations.
If relatives do not choose to become certified, they may choose to apply
for Relative TANF for public funds to help support the child. They could
also ask for child support from the Department.
Broad definition of “kin”

Relatives or persons with a “family like” relationship
Defenses at TPC
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Volume 7 process – identify family strengths,
identify needed services
Emergency?
Reasonable Efforts?
Safety Plan?
Placement with kin
Effect of admissible hearsay
Seeking Orders

Seeking orders:
 Visitation
when out of home placement is ordered
Reunification is dependent upon frequent and meaningful
visitation. See e.g. S. Leathers, “Parental Visiting and Family
Reunification: Could Inclusive Practice Make a Difference?”
Child Welfare 81 (4), 2002, 595-616, and
 Agency office visits are the worst locations for families to visit.
See W. Haight et al “Understanding and Supporting ParentChild Relationships During Foster Care Visits: Attachment
Theory and Research”, Social Work 48 (2), 2003.

 Services
 Evaluations
(need agreement for immunity)
Admissions at TPC?

Good idea or bad idea ?

Benefits
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Risks
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
The rationale for this is to fast track the case to the treatment plan phase and to
provide services to the family as soon as possible, thereby speeding reunification.
The risk of making an admission to not just the petition for Temporary Protective
Custody, but also to the petition in dependency and neglect is the rush to
prejudge the facts prior to an investigation and completing discovery.
Do the facts matter?
Local practice

It is important to know what is typical practice in your jurisdiction, but it is
just as important to make a case by case decision about what process to
follow.
Client Counseling
 Consider
the following when deciding whether to
contest the hearing or not:
 Defenses?
 Witnesses?
 Likelihood
to prevail?
 Placement and visitation?
Client Counseling
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Introduction to the system:
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What to cover:
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What to save for another day
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Whether to contest the removal
Explaining process
Answering questions, particularly about visits
Relatives and other support
Native American heritage
Fact investigation
Witnesses
Health care and mental health needs
Older children
Religion and culture
Advisement of rights : watch for new English/Spanish video version in 2011
How to be successful
Client counseling
Ethical issues
client with disability: Rules of Professional Conduct 1.14
See “Representing the Mentally Retarded or Disabled Parent
in a Colorado Dependent or Neglected Child Action,” 11
Colo.
Law. 693 (1982)
Determining whether client has a disability
Remedial action
Impact
TPC Motions Practice

Possible written motions after TPC hearing
 Motion
for reconsideration
 Motion for change of placement
 Motion for deposition of witness
 Motion for discovery
 Motion to conduct kinship home study
 Motion for physical or mental examination, CRE 37
 Motion to exclude evidence at trial
 Motion to redact hearsay within hearsay
 Subpoena for author of a report C.R.S. 19-1-107(2)
TPC Checklist Review

Before the hearing :
 Petition
 Client
interview
 Contact information
 Formulate a position

Success stories of pre-court advocacy?
TPC Checklist Review

During the hearing :
 ICWA
 Visitation
 Service
referrals
 Kinship investigations
TPC Checklist Review

After the hearing
 Client Appointment
 Service referrals
 Visitations
 Relatives
Reasonable Efforts

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Has the Department asked that efforts be excused
and on what grounds?
Could reasonable efforts still be made?
Safety Planning Options
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Was a safety plan considered?
What options are there?
Definitions of Neglect

How do Ms. Tillman’s actions meet the Department’s
definition of neglect? Volume 7.202.6:
“Minor – physical or emotional needs of child are
marginally or inconsistently met, but little or no impact on
child’s functioning”;
 “Medium – physical or emotional needs of child are
inadequately met resulting in some impairment in the child’s
functioning”; or
 “Severe – physical or emotional needs of child are not met
resulting in serious injury or illness”


What did she do that meets any of the above?
Definitions of Neglect Continued

If Ms. Tillman’s actions do not, or barely, meet the
definition of minor neglect, then what arguments will
the Department make to justify removal?

Look at the Department’s criteria for removal, Vol.
7.304.3, for questions to use on cross-examination
of the caseworker.
Relatives

What about placement with relatives?
Services
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What is the impact on mom completing a substance
abuse or psychological evaluation prior to
adjudication?
Can statements she makes in the evaluation be used
against her at the trial?
Will a C.R.S. § 19-3-207 order protect her
statements?
How is such an order obtained?
Are the evaluations reasonable?
Adjudication Offer

Impact of a no fault admission on the case?

Possible Defenses?