Children and the Law - NACC Child Law Attorneys and Lawyers

How can I reasonably discipline my child?
Being a parent is anything but easy. It takes patience, creativity, and an endless abundance of love. Some parenting skills come naturally, many are learned. Discipline must be learned. As parents, we are responsible for teaching discipline to our children. It takes time and practice, but it does get easier as children learn to control their own behavior. This process doesn't have to hurt you or your child.

What can I do when I feel out of control with my child?
Find a way to calm down so that you do not do or say something you will regret. Remember: What you do always teaches your children what to do. If you lash out, your children will learn to do the same. If you do lash out, apologize to your child. Saying "I'm sorry" teaches them what to do if they offend others.

What does the law say a parent's rights and responsibilities are to their child?
Parental rights include the idea of duties and obligations to the child and his/her welfare (CRS 19-4-102). While many consider the rights of a parent to be fundamental, they are not absolute (Prince, 321 U.S. 158). It is unacceptable conduct for a parent to purposely endanger the life or health of a child through physical, sexual, or psychological abuse (CRS 19-3-303).

The legal system further reflects the basic societal belief that children should receive at least a minimum standard of care. Following is a list of factors which the court would consider to determine whether a particular child was minimally well cared for. Does the parent:

Parents are also required by law to protect their children from any sort of harm whenever possible. Insufficient action on the part of the parent to protect or seek medical care for his/her child can be considered neglect (CRS 19-3-102 to 103).

In what ways do our laws respond to possible abuse or neglect of a child?
If an investigation conducted by a law enforcement officer, a protective service worker, or other persons assigned by the court provides enough information to find that a child has been abused and/or neglected, a treatment or punishment approach can be taken. Depending on the facts of the case, two different agencies can be involved: protective services and county attorneys that work on civil child protection cases. Law enforcement and district attorneys can prosecute child abuse as a crime.

While criminal cases, which are directed at punishing the perpetrator, are more likely to attract public concern, they are much less likely to occur than a civil child protection hearing. An adjudicatory hearing is held in a civil, juvenile, or family court to determine if a child is dependent or neglected (CRS 19-3-505). The terms "dependent" and "neglected" are used interchangeably and stand for a single concept which includes child abuse (In re D.L.E., 614 P.2d 873 Colo. 1980). This child protective services hearing is completely separate from the criminal system, but may occur before, during or after any criminal case deemed necessary by the district attorney. At the civil adjudicatory hearing, the judge must first determine is a child is abused or neglected. Then, if there is enough evidence of abuse or neglect, the court may order a treatment plan for the parents who must follow and complete with some amount of success. The situation is reevaluated until a final decision is made as to the child's best interests.

Who can take a child out of the home?
Only a few public authorities can order removal of a child. Even they can do so only under limited and necessary circumstances. A court order to remove a child to foster care can be sought by protective services workers, law enforcement officers, hospital administrators, and physicians if they reasonably believe the child has been abused or neglected by a caretaker (CRS, 19-3-405). Judges in each district are available around the clock to grant the court order (CRS, 19-3-405).

If a child is in immediate danger, a law enforcement officer may take the child into protective custody without a court order (People v. Malczewski, 744 P.2d 62 (Colo. 1987) and Griffin v. Pate, 644 P.2d 51 (Colo. App. 1981)) . The officer must then notify the parents as soon as possible of the child's placement (CRS 19-3-405). A hearing must be held within 48 hours to determine whether further detention of the child is justified (CRS 19-3-405).

What happens if a child is taken into protective custody by a law enforcement officer or child protection worker?
After a child has been placed in protective custody, the child protection worker or law enforcement officer involved in the case must notify the parents of the child's placement and inform them of their right to a court hearing within 48 to 72 hours (CRS 19-3-405). A judge will then determine whether to detain the child further or return him/her home (CRS 19-3-405).

Once a child is removed, will the parent get him/her back?
Upon completion of an investigation, a child protection worker must decide whether the report of the child abuse is founded. If abuse is determined, the case worker can recommend a treatment plan to the parents (Besharov, supra at 186-188). Upon successful completion, the caseworker must decide if the behavior of the parents and the condition which created the abuse has been rectified.

When parents disagree with a case worker's recommendations the matter can be taken to court for an adjudicatory hearing (CRS 19-3-505). This is a civil hearing for a judge to determine if a child is dependent or neglected. If the child is deemed dependent or neglected, the judge can then order the parents to comply with a treatment plan (CRS 19-3-508). The parent(s) must convince the judge that the treatment is successful and the child will be safe at home.

Cooperation with a treatment plan, however, does not necessarily end intervention. If completion of the treatment does not assure the child's safety, a more drastic outcome may be sought (CRS 19-3-604). If substantial compliance with the treatment plan is not successful in correcting the conduct or condition which initially led to the removal of the child then termination of the parent-child relationship is proper In re D.M.W., 752 P.2d 587 (Colo. App. 1987).

How is it determined if a child is dependent, neglected, or abused?
The child protective worker plays a key role in child abuse cases. Once a case is determined to be abusive or neglectful, a case worker will recommend a treatment plan for the parents and child to rectify the abusive or dangerous situation (Besharov, supra at 186-188). Parents are under no obligation to cooperate with this plan, but it is often in their best interest to do so (Besharov, supra at 213-214). If parents refuse to accept treatment, the case worker can file a motion requesting a finding of dependency and neglect with a court (CRS 19-3-308). The result is an adjudicatory hearing in which a judge may declare the child dependent or neglected based on evidence given by the case worker (CRS 19-3-505), as well as the parents. The judge can then order the parent(s) to comply with a treatment plan (CRS 19-3-508), if appropriate.

A case worker has the power to close a case, thus ending intervention, if the parent(s) voluntarily sought successful treatment and the child is out of danger, and thus a court was not involved. If treatment was ordered by the court, a case worker can influence a judge's decision as to the success of the treatment and future safety of the child (CRS 19-3-509). In the cases where treatment is unsuccessful, a case worker can suggest the termination of the parent-child relationship as a last resort (CRS 19-3-604). The final decision on forced relinquishment of parental rights is up to the judge (CRS 19-3-602).

If the court finds that a child is dependent, neglected, or abused, what can the court do?
If a judge finds a child to be abused or neglected, he/she may order a treatment plan for the parents. The court has a number of options in placing the child during the period of treatment. One or both of the parents may take legal custody with supervision by child protective services (CRS 19-3-508). If the child is in danger at home, the court can place him/her in foster care with relatives or an agency placement (CRS 19-3-508). A visitation schedule may be drawn up for the parents whose child is placed out of the home.

Once the treatment plan has been completed, the judge must evaluate its success. If further treatment is needed, the judge can order a continuation for six months (CRS 19-3-508). Successful completion of the treatment plan, and the assurance of the judge that the child will remain safe, ends intervention from child protective services. When it is apparent that no treatment will be successful, the judge may need to take a more drastic step.

What is a Dependency and Neglect Proceeding?
Dependency and Neglect (D&N) cases are ones regarding child abuse or neglect. Unlike a criminal case, parents involved in D & N cases are not prosecuted for a crime. A D&N case is a civil case that does not involve the criminal prosecution of parents. Instead, parents who are involved in an allegation of physical, emotional, or sexual abuse of their children are held responsible for making positive changes in their families for the benefit of children�s best interests and safety. Children involved in D&N cases are placed under the jurisdiction of the juvenile court for their safety and protection.

Who are the parties involved in a D&N Proceeding?
Parent�s Attorney: As a parent, a dependency and neglect case may lead to the termination of your parental rights, so it is important for you to get a lawyer. The court process is complicated; a lawyer will advocate for your rights at every stage of D&N proceedings. This can include helping you obtain access to resources you may need to resolve your case. If you cannot afford a lawyer, the court will review your financial records to determine whether or not you are eligible for a lawyer to represent you as the parent, free of charge.

Caseworker: One of the first people you will meet is a caseworker or social worker from your county�s department of social services (or Department of Human Services). He or she has the job of providing and coordinating services on your case and keeping in contact with your family. The caseworker will be in court and will make recommendations about what kinds of services should be provided to your family. During the case, it is important that you and your attorney keep in contact with the caseworker.

Guardian Ad Litem (GAL): The GAL is a lawyer who legally represents your child�s best interests. The GAL is responsible for investigating the allegations presented in your case, interviewing all of the professionals working with you in your case, and making a recommendation to the court regarding what is in your child�s best interest. The GAL will visit you, your child, and other persons involved in your case.

County Attorney: The county attorney represents the caseworker from the department of social services and is responsible for initiating the D&N case. The county attorney works with the caseworker in your case to make recommendations to the court regarding your child�s best interests.

Court-Appointed Special Advocate (CASA): CASAs are trained community volunteers who are appointed by the judge with recommendations so that the judge can make informed decisions about your child. The CASA volunteer�s only role is to advocate for the best interests and safety of your child. The CASA volunteer is not required to be an attorney.

What is the court process in dependency and neglect cases?
A D&N case begins with the filing of a petition by the county attorney or, in some places, the city attorney. Parents who are listed in the D&N petition are referred to as "respondents." You are required to appear in court and at that time, you may deny the allegations against you and demand that the case then be heard at trial by a judge or juvenile magistrate. You may also admit to the allegations in the petition and move forward to the treatment phase of your case.

The major stages of a D&N case are described below. The law requires the court and the department of social services to follow specific time frames for holding court hearings. In addition, some courts have special time requirements for cases involving children under the age of six; this is called an "expedited permanency planning" (EEP) case. At each stage, the court can order that the children be returned home, with or without supervision by the department of social services, or be placed in foster care.

The case may be referred to mediation. If so, the mediator will assist the family and professionals to reach an agreement for the treatment and best interests of the child and family involved in the case. A mediator is a neutral third party who is not affiliated with the court of social services but is a professional who provides a services to the court and the department of social services.

Preliminary Protection Proceeding
At this hearing, the judge or magistrate must decide if your child should be temporarily removed from the home because the home is unsafe. The court may order your child to take physical or mental health tests. This hearing must take place within 72 hours after placement, excluding Saturdays, Sundays, and court holidays.

Filing a Petition
The petition states the Department of Social Services� position on the facts of the case.

Adjudicatory Hearing
At this hearing, the court decides if the child is dependent or neglected. This is called an adjudication. If the court makes this decision, the child can be ordered to remain in the custody of the Department. The hearing should be held within 60 to 90 days of the date of service of the petition.

Disposition
If the court finds that your child is neglected or abused, the court will then approve a case treatment plan for you and your family. The caseworkers, GAL, your attorney, and you are responsible for developing a recommendation to the court regarding your case treatment plan. If you do not follow the requirements of the case treatment plan, the court may order that a motion for the termination of your parental rights be filed. The law also includes other factors for the court to consider moving forward with a motion for the termination of parental rights. At the disposition, the court may order any of the following as part of the case treatment plan:

The court may place your child in the custody of a relative or the department of social services or change the custodial relationship of parents.
The court may order your child to receive medical and mental health evaluations and treatment.
The court may order you, other parents, guardians, and others to undergo evaluations and treatment.
The court may order you to provide the department of social services with the names and addresses of other family members and relatives who have an interest in your child.
The court may order you and your family to participate in mediation or other types of meetings to discuss the issues in your case.

Reviews
The court will review your case regularly as long as your child remains in the custody or supervision of the department of social services. At each review hearing, the court is responsible for determining whether or not you are following the requirements of your case treatment plan and whether or not the department of social services is assisting you in meeting the requirements of your case treatment plan. You are required to attend each of the review hearings and provide information to the department of social services, your attorney, and GAL, and others as needed.

Permanency Plan
If your child remains in an out-of-home placement, the court is responsible for holding a permanency planning hearing within 12 months of your child�s removal from the home. If the court decides that your child cannot be returned home or to a relative, within a reasonable amount of time, the court is required to adopt a permanent plan for your child. If you are involved in an EPP (Expedited Permanency Planning) case, the court must approve a permanent home for your child within 12 months. If there is a failure to comply with, or successfully complete your case treatment plan, the court may terminate your parent-child relationship. Permanent plans include any of the following:

The court may order the child to be returned home.
The court may order the filing of a motion for termination of parental rights and that the child be placed for adoption.
The court may order long-term placement for your child in a foster home or with a relative.
The court may grant a legal guardianship for your child.
The court may decided that your child can live independently.

In the event that parental rights are terminated, a parent has the right to appeal.

Kempe Children's Center
Kempe Children's Foundation Public Affairs Committee
Lori Katz, pre-law intern to the C. Henry Kempe National Center for the Prevention and Treatment of Child Abuse and Neglect (Now the Kempe Children's Center)
Colorado Judicial Branch