While those minors that wind up in dependency court are also often appearing in delinquency court, the two courts have quite different functions. Delinquency courts hear cases about minors who have been charged with crimes and that many of them are also referred to Arizona dependency court because they are either in the child protective services system run by the Arizona Department of Children’s Services (DCS) or their parents have been accused of neglect or abuse by DCS.
While delinquency court must balance what is in the child’s best interests and the interests of public safety, as another component of the Arizona Juvenile Court System, dependency court aims only to preserve the child’s best interests. It investigates DCS findings, determines whether/how long each child should stay in the service’s custody, and, if necessary, places the child in a foster or group home, with a relative, or even in a shelter to protect them from parental abuse.
A dependency hearing in Arizona is a court proceeding in which a judge hears evidence to determine whether a child should be removed from his or her home and placed in the custody of DCS or whether the child should remain away from the parents. The dependency court can also remove parental rights based on its findings.
Why You Need an Attorney for an AZ Dependency Court Hearing
DCS guidelines state that child/parent reunification should always be the goal, while dependency focuses on removing children from dangerous environments. The two entities often disagree regarding the prospect of allowing children to return to their parents, especially since such decisions are nuanced, sometimes cloudy, and always difficult. While the best interests of the child are the sole concern of the court, that means any parent who has had a child cross DCS and dependency court radar will have an uphill battle when it comes to proving their right and fitness to parent.
If you have recently become subject to a dependency court hearing, you are likely upset, confused, and uncertain about your potential to retain the care of your children. For this reason, it is crucial to secure skilled representation if you are facing a dependency hearing in Arizona. Unfortunately, court-appointed counsel is spread thin and often doesn’t have the time to devote to your case as a private attorney would. For the best shot at success in a dependency hearing in Arizona, you need an experienced and dedicated family law attorney.
What Are the Grounds for DCS to Remove a Child in Arizona?
In Arizona, DCS can only remove a child from their home if there is a “substantial risk of harm” to the child. This means that DCS must have evidence that the child is in danger of:
- being physically abused
- sexually abused
- neglected
- abandoned
- or emotionally harmed if they remain in the care of their parents or guardians.
If DCS does have evidence of imminent harm, it will need to secure a court order before it can remove your child from your home. Then, the court will schedule a dependency hearing. At the dependency hearing, DCS will need to prove that there is a risk of imminent harm and that removal from the home is in the best interests of the child.
How Long Does It Take for DCS to File a Petition for a Dependency Hearing?
When the DCS has a report that abuse or neglect is taking place, an investigator is assigned to investigate the situation. The DCS investigation must be completed within 60 days, according to Arizona law. During this time the child can be potentially removed from the home preliminarily via a notification of temporary custody served to the parents.
A decision-making meeting will occur within 72 hours of any instance in which a child is removed from the home. This is an important opportunity for DCS and the parents to talk about safety concerns and placement situations. Parents are allowed to bring their attorney to the meeting as well as loved ones for support.
If the family is not reunited within 72 hours, DCS will approach the Attorney General to request a petition for dependency. This is a petition requesting the children be placed under the care of the state. The court then schedules a prehearing conference, as well as a preliminary hearing to assess the child’s need for protection from the parents. If the parents do not have an attorney, this is when the judge will appoint one to the family, as well as a Guardian ad Litem to represent the children’s best interests.
The protective hearing takes place within a week from the initial movement of the child or children from their home. It is important for parents to have private representation present for every meeting and hearing to best advocate for the child and parents. If parents do not appear for the prehearing conference or the preliminary protective hearing, all matters are resolved in the next phase, the initial hearing.
What to Expect at the Juvenile Dependency Prehearing Conference
A prehearing conference enables the parties to come together in a non-confrontational manner regarding all unresolved issues, including custody, child placement, and/or child visitation. Just before the prehearing conference, the parents can meet with legal counsel and discuss the case. After this, they are taken to a conference room where the prehearing conference takes place.
The formal preliminary protective hearing is held before a judge. Any agreements made during the prehearing are then entered into the court record. During this hearing, the parents can dispute their children’s removal from their home. They may also request another hearing to discuss the adequacy of the parent’s home.
The Initial Dependency Court Hearing
The initial hearing gives the parents a chance to deny or admit to allegations set forth in the petition regarding their fitness to parent. This hearing is set for 21 days from the date the dependency petition was served. If the parents choose to refute the evidence, they have the chance to do so in the hearing.
Before that hearing takes place, the court sometimes sets a settlement conference with mediation. The intention of this meeting is to potentially non-confrontationally resolve issues using a mediator. Following the settlement conference, there will be a pre-adjudication conference. This meeting will discuss the proceedings and schedule the dates for the hearing.
Adjudication/Dependency Hearing
A dependency hearing in Arizona is called adjudication. This is a legal proceeding in which CPS seeks to remove a child from their home on the grounds that they are at risk of harm.
The adjudication hearing, which is a trial, is scheduled if the parents elect to deny the allegations against them. It must be scheduled for at least 90 days from the date of the service of the petition.
The hearing is presided over by a judge, and both parents have the right to be present and represented by an attorney. At the hearing, both sides will have the opportunity to present evidence and witnesses. The state Attorney General’s Office must present evidence to the judge that there is a substantial risk of harm to the child if they remain in the home. This evidence can include a variety of testimonies and documented accounts.
Potential witnesses that can be called to testify include the following:
- The DCS worker who originally investigated the child’s parents and their home
- Police officers, if they were called to the home
- Family and friends who can attest to the treatment of the children
- Anyone else familiar with the situation, the neglect or abuse, and both parents, such as school counselors, staff, or even teachers
Disposition
If the judge finds the grounds for removal are valid, a disposition hearing is established to be held within 30 days to establish a case plan, determine the placement of the children, and define the services the children and parents are to receive. DCS must then submit a case plan that outlines long-term goals for the family, including the reunification of children and parents or severance and adoption.
The court must present the case plan before ordering the parents to comply fully with the plan as outlined by DCS. The DCS plan almost always attempts to reunite the family, but there are typically numerous steps the parents must take before reunification can occur. These steps can take time and patience on the part of both the state and the parents.
Potential requirements for parents include the following:
- Drug testing
- Counseling
- Working with a parent mentor or aide
- Actively participating in visitation
- Improving certain home conditions
Permanency Planning Hearing
For children younger than three years old, the permanency planning hearing is held within six months of children being removed from the home. For children over three years of age, the permanency planning hearing is scheduled within one year of removal. If the parents do not show progress, the state can request the case plan be altered to permanent guardianship or severance and adoption at this hearing. This is a crucial and life-changing hearing, as the parents could lose all rights to their children permanently if the court orders the case plan to be changed to permanent guardianship or severance and adoption.
Severance
To sever a parent’s rights to their children, the court must prove one of the following:
- Willful abuse, neglect, or failure to protect
- Abandonment, in which the parent fails to maintain contact and provide reasonable support.
- Mental illness, deficiency, or substance abuse by the parent in which their condition makes them incapable of parental duties.
- Parental incarceration for two years or more or conviction of a felony
- Failure to file a paternity action
- Consent to adoption
- The parents significantly failed to follow through with the case plan, or the parent has been unsuccessful in remedying the situation within the first nine months.
- Children are removed by the state a second time within 18 months
Appealing Dependency or Severance
Parents can appeal a ruling of dependency or severance by filing a petition of appeal. An appeal is a request to the Court of Appeals to investigate the proceedings for an error of procedure or law that occurred during the trial. If a mistake is found, the appeal also asks that the court reconsider the previous decision.
The Court of Appeals does not reconsider evidence or hear new testimonies. It only reviews the record of the trial court to determine if a mistake was made. The Court of Appeals assumes that the trial was carried out appropriately and will only overrule that court if a clear mistake in the law is found.
How Do I Fight DCS in Arizona?
If you are facing a dependency hearing in Arizona, it is important to understand the process and what you can do to protect your rights. If DCS has filed a petition to remove your child, you will be given notice of the hearing and given an opportunity to attend. You have the right to be represented by an attorney, so the best thing you can do is hire a skilled Arizona Family Law attorney to represent you.
You and your attorney can fight DCS by gathering evidence that disproves their claims, arranging your testimony on your own behalf, presenting witnesses to back up your case, and cross-examining witnesses. Your attorney can help you gather as much evidence as possible to support your case. This may include character witnesses, medical records, school records, or anything else that can show that your child is not being abused or neglected. The more evidence you have, the better chance you have of convincing the judge to rule in your favor.
The next thing you should do is understand the importance of being prepared for the hearing itself. This means organizing your evidence, as well as thoroughly preparing to give your statement at the hearing. Your attorney can help you as you prepare for the hearing, especially when it comes to organizing your documentation, cross-examining any witnesses who testify against you, and preparing your testimony.
It is important to remember that a dependency hearing in Arizona is not a criminal proceeding. This means that the standard of proof is lower than it would be in a criminal case. The burden of proof is on DCS to show that it is more likely than not that the child is being abused or neglected. Also, consider that because dependency is considered a civil matter, the constitutional right to remain silent is revoked for all parties, making it even more important for you to secure an attorney. Not having the right to remain silent means that you must answer the questions asked by the state unless, however, you have pending criminal charges for the same allegations.
Navigate Dependency Hearings in Arizona
If you are facing a dependency hearing in Arizona, you are about to enter the arena with not only the dependency court but also DCS. These two organizations are both invested in your child’s best interests but often take different approaches to protect Arizona children. When you consider the fact that your children have already been removed from your home, whether due to delinquency, other situations in the home, or an unfounded accusation, dependency court can be an extremely complex, emotional struggle.
Contact us for a free consultation.
Sources:
Jonathan Roeder, Founder/Director of Marketing of The Valley Law Group, is an Arizona native who has dedicated his life and career to the service of others. After graduating salutatorian of his high school class, Jonathan attended beautiful and prestigious Pepperdine University, where he majored in Political Science. During his tenure at Pepperdine University, his passion for helping others grew after securing a clinical position with a residential treatment center for juveniles with substance addictions. Post-graduation, Jonathan returned to Arizona and served as a residential manager for mentally and physically disabled homes.