Parent Representation

There is no bond more sacred than that between a parent and child. The U.S. Supreme Court decided many years ago that parents enjoy a fundamental right to direct the upbringing of their children. This incudes the right to make decisions about education, medical treatment, religion, sports & activities, and many other things.

Sometimes, issues arise in a family and the Division of Family Services (DFS) becomes involved. There are a wide range of issues that could trigger DFS involvement, including any of the following:

Homelessness
Untreated mental health
Active substance abuse
Ongoing domestic violence
Incarceration
Difficulty with the parent-child relationship
Unmanageable child behaviors
Unexplained child injury

For some families, a short-term solution – known as a “safety plan” – is put into place and treatment services are offered while the family’s progress is monitored. Other times, DFS requires the parents to place the child(ren) out-of-the-home with a relative or close friend while the parents access services. In the most serious of cases, or in those cases where a relative placement is not readily available, DFS will ask a Family Court judge for emergency temporary custody. At this point, under Delaware law, a parent is entitled to attorney representation.

The court process

Once a child is placed in temporary custody with the state of Delaware, the child receives an attorney. At the first hearing, known as a “preliminary protective hearing” or “probable cause” hearing, the Judge will award attorneys for the parents. The DFS social worker is represented by a deputy Attorney General through the Department of Justice. At the first probable cause hearing, the Judge must make several findings:

Did the social worker make reasonable efforts to prevent the removal of the child from the family’s home? This includes efforts to place the child with relatives.
Is there probable cause to believe the child is in at an imminent (likely) risk of harm? This finding includes evidence relating to the issues that gave rise to DFS involvement (for example, chronic substance use or dangerous domestic violence).

If the court finds probable cause, the Judge will set a date for the Adjudicatory hearing. This is a full trial on the allegations raised by DFS. This hearing will occur within 30 days of the probable cause hearing. Parents in this situation have the right to waive their adjudicatory hearing, or request a full trial. The decision made at this juncture will depend on the severity of the outstanding issues, and whether the child can be safely placed back with the parents immediately.

Court-ordered case plan

If the parents agree that they have obstacles to overcome, or the Court makes such a finding at the adjudicatory hearing, the parents will generally be assigned a new DFS social worker. A case plan will be developed that serves as a “roadmap” toward what is known as reunification. In other words, what do the parents need to do in order to have their child returned? Case plans can include any of the following requirements:

Obtain six months of sobriety while working with a reputable substance abuse facility (g., Connections or Thresholds);
Engage in mental health counseling;
Secure safe housing;
Resolve legal issues/stay compliant with probation;
Engage in domestic violence services as either a victim or a perpetrator, depending on the situation;
Attend & engage in the children’s medical and educational appointments;
Take a parenting course;
Showcase parenting skills in frequent and meaningful visitation.

In some cases, especially those involving parent-child conflict, family therapy may also be recommended in addition to individual counseling.

Review Hearings

After the Judge reviews the case plan, he or she will set a date for the first review hearing. At the review hearing, the Judge will make several key findings, including:

Whether DFS is using reasonable efforts to help the parent with services;
Whether the original issues still remain and, if so, what the parent needs to do to overcome those issues;
How the child is doing in foster care, whether the child is up-to-date on medical and dental appointments, and if the child is receiving appropriate mental health services;
Whether the parent and child are receiving adequate and meaningful visitation in the least restrictive environment possible.

There are generally three review hearings during the case, and are scheduled about 90 days apart. During that time, if the parent makes progress on the case plan, visitation will begin to increase and supervision will begin to lift.

Permanency

Under Delaware and federal laws, the Court must make a permanency decision within one year from the date of “adjudication” if the child cannot be yet returned home. There are currently five permanency options:

Continued reunification (e., allowing the parents an additional 3-6 months to work on their case plan);
Guardianship;
Permanent guardianship;
Another Planned Permanent Living Arrangement (“APPLA”) – Only available for children aged 16 and older; or
Termination of parental rights for purposes of adoption.

Post-permanency

Once a permanency decision is made, at least one more hearing must occur in order for the court to enter a final order. In termination cases (TPR), DFS must allege that the parent did not complete his/her case plan, and that it is in the best interests of the child to permanently lose his/her parents to be freed for adoption. Other options, including guardianship, require a final guardianship hearing. If the parents are doing well, and are almost done with their case plans, the Court may allow for additional time beyond one year.