DCFS – Dept. of Children and Family Services

The State of Utah v. YOU

utah-dcfs-department-of-children-family-services-attorney-david-laurence-altman-st-george-dcfs-department-of-children-family-services-lawyerHas the DCFS (Department of Children and Family Services) come knocking at your door. You’re not alone. Even good parents can be charged with child neglect or child abuse and that is something that happens virtually every day in Utah.  And when that happens, parents are in danger of having their children removed from their home and placed in temporary foster case or even losing permanent custody.

The DCFS has the noble mission of trying to protect children from abuse and neglect. That may include incidents of domestic violence that are not directed to or in the presence of a child. In their single minded zeal to accomplish that goal, DCFS caseworkers often ignore any evidence inconsistent with their conclusions and often rush to judgment before all of the facts can be considered.  This excessively proactive approach results in innocent parents having to defend themselves in court against allegations and accusations that should never have been made. To make matters even worse, DCFS investigations result in parents’ names being added to the DCFS data base. This inclusion can in some instances result in significant financial consequences such as the inability to work in certain professions involving children, such as teaching or even the loss of employment.

While it is true that a large majority of abuse and neglect cases involve very real and actual neglect and child abuse, a significant number of innocent parents get caught up in the juvenile court system through no fault of their own.  And once that happens, those parents are facing a system that almost always gives more weight to perceived if unproven risks to the child over the parents’ fundamental constitutional rights.

It is not difficult to understand the institutional bias that results in pre-ordained investigative conclusions and even erroneous court findings and orders.  Failures to properly investigate and follow up on child abuse and child neglect cases can lead to tragic results, horrific or even fatal injuries to the child.  And when that happens, the repercussions can go far and wide; caseworkers are disciplined or fired, judges are held up to public criticism and the careers and lives of all involved can be derailed or ruined for lack of aggressive intervention on behalf of the child.  As a result, the odds against accused parents are greater than ever before.

The State of Utah through the Utah Attorney General’s office will prosecute any child abuse or neglect case against the parent or parents.  The child will be appointed an attorney of his or her own by the court, known as a guardian ad litem. Often, the guardian will side with the state’s attorney and present a uniform front against the parents in court.

JUVENILE COURT PROCEEDINGS

Pre-Trial Hearings

Once the DCFS has presented its findings and recommendations to the Attorney General’s office, the State of Utah will file a verified petition on behalf of the child.  Parents will be served with the petition and be summoned to appear in court for a Pre-Trial hearing. At the hearing parents have the opportunity to admit or deny the allegations in the petition and the court will consider oral arguments.  The court will issue temporary orders which could requiring home inspection visits by the DCFS if the children are allowed to remain in the home, or the physical removal of children from the family home.  

The court’s authority is not limited to orders directly relating to the welfare of the children. The court may issue specific stay away protective orders where, for example a relative or friend poses a risk or danger to the child.  If that individual is part of the court proceeding, the protective order would be directed to that person; if that person is not a party to the proceedings, the court could order the parent to take certain measures to prevent that person’s access to the children expert under certain supervised situations.  The court can also order parents to submit to anger management classes, drug or alcohol assessments, drug or alcohol testing and drug treatment including intensive outpatient treatment or residential treatment.

FURTHER HEARINGS

The court may not rule on all issues at the Pre-Trial and may order further review or evidentiary hearings to more fully consider all issues.  Typically the court will require the DCFS to submit additional reports or other evidence for the court’s consideration. Parents will have the opportunity to present any new or additional evidence and offer witnesses on their behalf at such evidentiary or review hearings.

MEDIATION

The court may order the parties into mediation in an attempt to resolve issues without further litigation.  Mediation offers the advantage of a fast resolution of some or all of the issues. The mediation is conducted by a neutral mediator who will attempt to assist the parties in resolving their differences but does not have the authority to compel any party to accept terms that such party disagrees with or finds objectionable. Mediation is an informal and often successful process when parents are fully prepared in advanced and represented by experienced counsel.

STIPULATED SETTLEMENT

Even if mediation is unsuccessful, ongoing negotiations may result in a negotiated settlement on some or all issues.  This out of court settlement is then presented to the court as a stipulation or stipulated settlement, either in a written document or by oral representation to the court.

TRIAL

Trials in juvenile court are known as Adjudication Hearings. These hearings are very similar to trials except that they are conducted by the judge as the trier of fact instead of a jury. Both sides can present any relevant witness or documentary evidence to support their case. The guardian ad litem will usually support the State Attorney General’s position.  Although governed by rules of evidence similar to the rules in adult court proceedings, juvenile court judges will often consider information that contains hearsay or does not meet the same admissibility standard as is used in adult court proceedings. The burden of proof in juvenile court matters is by “clear and convincing evidence,” a standard that is higher than the civil courts’ preponderance of evidence threshold but less than the criminal courts’ “beyond a reasonable doubt” standard. After hearing all of the evidence, the judge will issue the court’s formal findings on the neglect and abuse charges.  If neglect or abuse or both are found, the court will make orders for the benefit of the children, either leaving the children with the parents subject to supervision and other terms and conditions or will remove the children from the home.  If the court orders the children to be removed the court will place the children in foster care but the parents will have the opportunity at subsequent review hearings to recover custody through a reunification plan monitored by DCFS.

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