Order of Temporary Custody
When DCF believes your child is in danger and neglected, they can ask the court for permission to remove your child from you. Often, they ask for for temporary custody. A judge will decide whether to give DCF permission to keep your child until there is a hearing for you. This permission is called an order of temporary custody (OTC).
Letter of the Law:
“Pursuant to General Statutes § 46b-129 (b), the court may issue an order ex parte vesting in some suitable agency or person the child's or youth's temporary care and custody if it appears, on the basis of the petition and supporting affidavits, that there is reasonable cause to believe that (1) the child or youth is suffering from serious physical illness or serious physical injury or is in immediate physical danger from the child's or youth's surroundings, and (2) that as a result of said conditions, the child's or youth's safety is endangered and immediate removal from such surroundings is necessary to ensure the child's or youth's safety... At a subsequent hearing on an order of temporary custody, the proper standard of proof... is the normal civil standard of a fair preponderance of the evidence.” (Internal citations and quotation marks omitted.) In Re Kelsey M., 120 Conn. App. 537 (2010).
This is the legal standard for an order of temporary custody, but it does not tell the parents or guardians everything they should know. First, if you have been served with an order of temporary custody, you need an attorney immediately. In the State of Connecticut, by statute (not a constitutional right), you will be supplied with a court-appointed attorney if you qualify financially. You will not meet this attorney until the first court date, and you and your attorney will have to decide in that short period of time whether to have a contested hearing to return your children or enter into some agreement. This is not the ideal scenario for making such an important decision.
When is an Order of Temporary Custody Issued?
The Order of Temporary Custody from a court is usually the last legal concept involved in the removal of your child. At times, a DCF investigation can result in the DCF field worker requesting a 96-hour administrative hold, which legally allows DCF to hold your child for up to 4 days. This hold can be invoked by a DCF administrator or certain medical personnel. After obtaining the 96-hour hold, DCF usually attempts to obtain an ex parte Order of Temporary Custody (an ex parte OTC is one obtained without an attorney for the parents present). After these steps have occurred, DCF will file for an Order of Temporary Custody.
OTC and Beyond
If the parent loses the Order of Temporary Custody hearing, DCF will receive temporary custody of the child. The parents will still retain guardianship and parental rights, but will be stripped of legal and physical custody of the child. The court can “vest” (order) custody of the child with DCF, family members, or a non-custodial parent.
While the placement of the child matters very much to the family, the larger issue for parents who have lost custody is time: federal statutes direct DCF to file a Termination of Parental Rights petition if the child has been in care for 15 out the last 22 months.
Once a child is in foster care, DCF will push for a commitment of the child. Commitment means “an order of the judicial authority whereby custody and/or guardianship of a child or youth are transferred to the Commissioner of the Department of Children And Families” (Conn. Practice Book § 26-1(b) (2014)). If your child is committed, you still retain your parental rights, but are stripped of all legal decision-making authority as to the child.
While a child is committed, DCF is supposed to provide the parents with services designed to assist the family in the reunification process. One way the court ensures that DCF has engaged in reasonable efforts towards reunification is through the permanency plan.
After a child has been in DCF custody for 9 months, DCF must file a permanency plan. This plan needs to lay out what DCF plans to do to achieve permanency for the child. The plan needs to be approved by the court and the court needs to find that the plan is in the best interests of the child. The plan can call for reunification of the child with the parent, an order of transfer of guardianship, or even termination of parental rights.
The permanency plan is an important event in a child protection case. In fact, the plan is required by federal statute in order for DCF to continue receiving funding for children who are in their custody. If a plan is not approved, DCF will lose funding for that child.
Challenging an Order of Temporary Custody
The parents have a right to object to DCF’s plan within 30 days of its filing. If the plan is objected to, the court must schedule a hearing within 30 days to hear evidence and determine whether the plan should be approved.
The Bottom Line
If your child has been taken by DCF, you need to contact an attorney. Do not speak to DCF; call my office immediately. You will need an attorney who understands permanency plans (which are unique to juvenile matters) and the important timelines associated with them. Protect yourself – contact The Law Offices of John J. Ghidini today »