Update and Question re: supervised visitation

[InfantCustody]

What is the name of your state (only U.S. law)?

Hi,

So, to update everyone. CPS is going to substantiate the case for neglect resulting in serious physical injury, maintaining a neglectful and injurious environment and failure to provide necessary and stabilizing medical treatment. The worker said while the baby was clearly burned, and that is abuse, they cannot substantiate for abuse against Dad as there were 5 adults in the house and no one will say what happened...so the baby cannot be placed "in Dad's hands" when the burns occured. They will be giving a case plan to Dad and continung the recommendation that he have no unsupervised contact with the baby. The police investigation is ongoing.

The baby is doing much, much better. The burns are 99% healed and he is a happy guy! It was absolute HELL getting him here, but thankfully we are on the other side. We had a NAT scan done at a local hospital, per social services, and it was negative for any other signs of physical abuse. After 4 weeks of no extended time with Dad (Dad hadn't been using his time before the baby was burned, as the baby had been sick. This happened on his first visit after 2 wks off), the baby has put his 3 lbs back on, plus another 1.2 lbs...so has gained 4.2 lbs in about 4 weeks.

With the recommendation for supervised contact...who would supervise? What amount of "time" is typically given for supervised visitation? Dad has said if he has to have supervised visitation, he wants his 48 hours/wk, progressing to shared custody, with a member of his family "supervising." I know it "can" be a family member, but all 5 members of his immediate family were present when the burns occured and not one of them a.) stopped it from happening or b.) sought medical treatment after it happened. Additionally, we do not "know" for certain who burned the baby, as no one will talk. The baby also shares a room with Dad, so he would not be supervised at night which is when the burns happened. Would it be reasonable to request that his family NOT be allowed to supervise his visitation given these circumstances?

Thanks for your kind words and prayers for my little guy. He sends his thanks as well!

 

[milspecgirl]

I would suggest a supervision center at dads expense for a couple of hours at a time building up over time as dad can show that he can be trusted.
I would absolutely fight against any of the people that were there being a supervisor- that has already been proven not to work.
So, dad either needs to come up with a supervisor the court approves of or use a center.
And the whole 48 hours??? I doubt it. It will probably be a couple of hours at first and then build up from there.

 

[CSO286]

I would suggest a supervision center at dads expense for a couple of hours at a time building up over time as dad can show that he can be trusted.
I would absolutely fight against any of the people that were there being a supervisor- that has already been proven not to work.
So, dad either needs to come up with a supervisor the court approves of or use a center.
And the whole 48 hours??? I doubt it. It will probably be a couple of hours at first and then build up from there.

Ditto this completely, I also doubt that any of those family members would be deemed suitable supervisors by CPS. Express your strong oppostion to them stepping into that role when/if Dad suggest them as possible supervisors in court.

Dad can exericse the parenting time granted by the court at a court approved visitation center--at his expense.

 

[reportermom]

I am so glad that you updated us!

I am very happy that your little one is thriving and putting on weight like he should!

Keep up the good work and hang in there!

 

[MichaCA]

Did you file an exparte when this all came up, or has nothing been addressed in court yet?

I am very glad your baby is thriving.

 

[InfantCustody]

Did you file an exparte when this all came up, or has nothing been addressed in court yet?

I am very glad your baby is thriving.

Nothing has been addressed in court as of yet. Dad has been voluntarily complying with the safety assessment until now saying he cannot have any unsupervised contact. My attorney is going to be asking his attorney to agree to a temporary modification of our agreement, indicating he can have only supervised time. If he won't agree, she is filing an exparte motion.

 

[gr8rn]

Does the CPS worker know that he wants his "family" to supervise? If not, I would let her know. Maybe she can make recommendations as to a visitation facility or she can say that you can supervise the visits.
I am glad that he has gained the weight back.

 

[Ohiogal]

So when was the court hearing? Were you served? was he? What are the court orders? Are you on the caseplan?

 

[InfantCustody]

Does the CPS worker know that he wants his "family" to supervise? If not, I would let her know. Maybe she can make recommendations as to a visitation facility or she can say that you can supervise the visits.
I am glad that he has gained the weight back.

As of right now, it is written that "Father can have supervised visitation, at Mother's discretion, provided that Mother will remain present at all times. Father may not have unsupervised contact with ********."

I just spoke with the case worker and she said as soon as the final case report is typed up, which will be any day now, since the child is not in CPS custody they cannot make a recommendation as to visitation as of that time. They can only provide a copy of the report stating the grounds for substantiation and as of that time it is up to the parents and the judge. So...I called my attorney and she is having me come in tomorrow AM to get all the ducks in a row for filing the ex-parte motion.

The case worker said Dad will be given a case plan to include parenting classes, appropriate discipline classes, coping strategies, child safety classes and so on. She said, because we live in different counties, the county Dad resides in will have to provide these services to him. She also said after completion of the classes, CPS will be performing on-going services within Dad's home to see how he is implementing the things he has learned and how child abuse and neglect can be avoided in the future.

 

[InfantCustody]

So when was the court hearing? Were you served? was he? What are the court orders? Are you on the caseplan?

There has not been a court hearing as of yet. No hearing, so no one has been served. The only thing I am listed on is the safety assessment, and my listing on that says that Dad cannot have any unsupervised contact, and that I will supervise any contact that does take place. I just got off the phone with the social worker and she said they are typing up the case plan, which will then be referred to Dad's county. She went over the details of the substantiation (which she had also done last week) and went over the "on-going services" that will be recommended to Dad. I am not on the caseplan, as I am the "non-offending parent."

 

[Ohiogal]

There has not been a court hearing as of yet. No hearing, so no one has been served. The only thing I am listed on is the safety assessment, and my listing on that says that Dad cannot have any unsupervised contact, and that I will supervise any contact that does take place. I just got off the phone with the social worker and she said they are typing up the case plan, which will then be referred to Dad's county. She went over the details of the substantiation (which she had also done last week) and went over the "on-going services" that will be recommended to Dad. I am not on the caseplan, as I am the "non-offending parent."

And without a court order and dad being given a chance to provide evidence, his due process rights are being trampled unconstitutionally. CPS does not have the right to unilaterally change his visitation.

 

[Ohiogal]

The Law

§ 7B-200. Jurisdiction


(a) The court has exclusive, original jurisdiction over any case involving a juvenile who is alleged to be abused, neglected, or dependent. This jurisdiction does not extend to cases involving adult defendants alleged to be guilty of abuse or neglect.

And then:

§ 7B-320. Notification to individual determined to be a responsible individual


(a) Within five working days after the completion of an investigative assessment response that results in a determination of abuse or serious neglect and the identification of a responsible individual, the director shall personally deliver written notice of the determination to the identified individual.(b) If personal written notice is not made within 15 days of the determination, the director shall send the notice to the identified individual by registered or certified mail, restricted delivery, return receipt requested, and addressed to the individual at the individual's last known address.

(c) The notice shall include all of the following:

(1) A statement informing the individual of the nature of the investigative assessment response and whether the director determined abuse or serious neglect or both.

(1a) A statement that the individual has been identified as a responsible individual.

(2) A statement summarizing the substantial evidence supporting the director's determination without identifying the reporter or collateral contacts.

(3) A statement informing the individual that unless the individual petitions for judicial review, the individual's name will be placed on the responsible individuals list as provided in G.S. 7B-311, and that the Department of Health and Human Services may provide information from this list to child caring institutions, child placing agencies, group home facilities, and other providers of foster care, child care, or adoption services that need to determine the fitness of individuals to care for or adopt children.

(4) A clear description of the actions the individual must take to seek judicial review of the director's determination.

(d) In addition to the notice, the director shall provide the individual with a copy of a petition for judicial review form and instructions for how to file and serve the petition.

Was the above done?

 

[Ohiogal]

7B-401. Pleading and process


The pleading in an abuse, neglect, or dependency action is the petition. The process in an abuse, neglect, or dependency action is the summons.

and:

7B-405. Commencement of action


An action is commenced by the filing of a petition in the clerk's office when that office is open or by the issuance of a juvenile petition by a magistrate when the clerk's office is closed, which issuance shall constitute filing.

History. 1979, c. 815, s. 1; 1998-202, s. 6; 1999-456, s. 60.

And then:

§ 7B-406. Issuance of summons


(a) Immediately after a petition has been filed alleging that a juvenile is abused, neglected, or dependent, the clerk shall issue a summons to the parent, guardian, custodian, or caretaker requiring them to appear for a hearing at the time and place stated in the summons. No summons is required for any person whose actions resulted in a conviction under G.S. 14-27.2 or G.S. 14-27.3 and the conception of the juvenile. A copy of the petition shall be attached to each summons. Service of the summons shall be completed as provided in G.S. 7B-407, but the parent of the juvenile shall not be deemed to be under a disability even though the parent is a minor.

(b) A summons shall be on a printed form supplied by the Administrative Office of the Courts and shall include each of the following:

(1) Notice of the nature of the proceeding.

(2) Notice of any right to counsel and information about how to seek the appointment of counsel prior to a hearing.

(2a) Notice that, if the petition alleges and the court determines that the respondent is a responsible individual, the respondent's name will be placed on the responsible individuals list as provided in G.S. 7B-311, and that the Department of Health and Human Services may provide information from the list to child caring institutions, child placing agencies, group home facilities, and other providers of foster care, child care, or adoption services that need to determine the fitness of individuals to care for or adopt children.

(3) Notice that, if the court determines at the hearing that the allegations of the petition are true, the court will conduct a dispositional hearing to consider the needs of the juvenile and enter an order designed to meet those needs and the objectives of the State.

(4) Notice that the dispositional order or a subsequent order:

a. May remove the juvenile from the custody of the parent, guardian, or custodian.

b. May require that the juvenile receive medical, psychiatric, psychological, or other treatment and that the parent participate in the treatment.

c. May require the parent to undergo psychiatric, psychological, or other treatment or counseling for the purpose of remedying the behaviors or conditions that are alleged in the petition or that contributed to the removal of the juvenile from the custody of that person.

d. May order the parent to pay for treatment that is ordered for the juvenile or the parent.e. May, upon proper notice and hearing and a finding based on the criteria set out in G.S. 7B-1111, terminate the parental rights of the respondent parent.

(c) The summons shall advise the parent that upon service, jurisdiction over that person is obtained and that failure to comply with any order of the court pursuant to G.S. 7B-904 may cause the court to issue a show cause order for contempt.

(d) A summons shall be directed to the person summoned to appear and shall be delivered to any person authorized to serve process.

So when did the court order the caseplan?

 

[InfantCustody]

And without a court order and dad being given a chance to provide evidence, his due process rights are being trampled unconstitutionally. CPS does not have the right to unilaterally change his visitation.

And they acknowledge that they have no right to change his visitation, minus the child being in their custody. His "compliance" with the safety plan has been voluntary. Had he failed to voluntarily comply with the safety assessment, I would have had to go to court for a hearing much earlier. She said they make a safety plan, and it is up to the non-offending parent to either have the other parent comply or present the safety assessment and evidence in court, and ask a judge to follow their safety recommendations.

In this particular case, 4 MD's have said the baby was burned by heat, so I am not sure what evidence Dad will present, but I am certain he will try and I know he has the right to be heard. The same right I would want if I were in his shoes.

I will say I am amazed at how quickly CPS inserts themselves into every aspect of your life. My older son, while he was uninvolved and nothing happened in my home, was listed on the case and they interviewed him, examined his schooling, medical care, etc before clearing his portion of the case. It was really shocking when Dad was reported for abuse and they started looking into my parenting of my older son. I knew it was all ok, but still shocking.

 

[Ohiogal]

Also dad has a right to have counsel appointed for him:

§ 7B-602. Parent's right to counsel; guardian ad litem


(a) In cases where the juvenile petition alleges that a juvenile is abused, neglected, or dependent, the parent has the right to counsel and to appointed counsel in cases of indigency unless that person waives the right. When a petition is filed alleging that a juvenile is abused, neglected, or dependent, the clerk shall appoint provisional counsel for each parent named in the petition and indicate the appointment on the juvenile summons or attached notice. At the first hearing, the court shall dismiss the provisional counsel if the respondent parent:

(1) Does not appear at the hearing;

(2) Does not qualify for court-appointed counsel;

(3) Has retained counsel; or

(4) Waives the right to counsel.

The court shall confirm the appointment of counsel if subdivisions (1) through (4) of this subsection are not applicable to the respondent parent.

The court may reconsider a parent's eligibility and desire for appointed counsel at any stage of the proceeding.

Please note:

§ 7B-904. Authority over parents of juvenile adjudicated as abused, neglected, or dependent


(a) If the court orders medical, surgical, psychiatric, psychological, or other treatment pursuant to G.S. 7B-903, the court may order the parent or other responsible parties to pay the cost of the treatment or care ordered.

(b) At the dispositional hearing or a subsequent hearing if the court finds that it is in the best interests of the juvenile for the parent, guardian, custodian, stepparent, adult member of the juvenile's household, or adult relative entrusted with the juvenile's care to be directly involved in the juvenile's treatment, the court may order the parent, guardian, custodian, stepparent, adult member of the juvenile's household, or adult relative entrusted with the juvenile's care to participate in medical, psychiatric, psychological, or other treatment of the juvenile. The cost of the treatment shall be paid pursuant to G.S. 7B-903.

(c) At the dispositional hearing or a subsequent hearing the court may determine whether the best interests of the juvenile require that the parent, guardian, custodian, stepparent, adult member of the juvenile's household, or adult relative entrusted with the juvenile's care undergo psychiatric, psychological, or other treatment or counseling directed toward remediating or remedying behaviors or conditions that led to or contributed to the juvenile's adjudication or to the court's decision to remove custody of the juvenile from the parent, guardian, custodian, stepparent, adult member of the juvenile's household, or adult relative entrusted with the juvenile's care. If the court finds that the best interests of the juvenile require the parent, guardian, custodian, stepparent, adult member of the juvenile's household, or adult relative entrusted with the juvenile's care undergo treatment, it may order that individual to comply with a plan of treatment approved by the court or condition legal custody or physical placement of the juvenile with the parent, guardian, custodian, stepparent, adult member of the juvenile's household, or adult relative entrusted with the juvenile's care upon that individual's compliance with the plan of treatment. The court may order the parent, guardian, custodian, stepparent, adult member of the juvenile's household, or adult relative entrusted with the juvenile's care to pay the cost of treatment ordered pursuant to this subsection. In cases in which the court has conditioned legal custody or physical placement of the juvenile with the parent, guardian, custodian, stepparent, adult member of the juvenile's household, or adult relative entrusted with the juvenile's care upon compliance with a plan of treatment, the court may charge the cost of the treatment to the county of the juvenile's residence if the court finds the parent, guardian, custodian, stepparent, adult member of the juvenile's household, or adult relative entrusted with the juvenile's care is unable to pay the cost of the treatment. In all other cases, if the court finds the parent, guardian, custodian, stepparent, adult member of the juvenile's household, or adult relative entrusted with the juvenile's care is unable to pay the cost of the treatment ordered pursuant to this subsection, the court may order that individual to receive treatment currently available from the area mental health program that serves the parent's catchment area.

(d) At the dispositional hearing or a subsequent hearing, when legal custody of a juvenile is vested in someone other than the juvenile's parent, if the court finds that the parent is able to do so, the court may order that the parent pay a reasonable sum that will cover, in whole or in part, the support of the juvenile after the order is entered. If the court requires the payment of child support, the amount of the payments shall be determined as provided in G.S. 50-13.4(c). If the court places a juvenile in the custody of a county department of social services and if the court finds that the parent is unable to pay the cost of the support required by the juvenile, the cost shall be paid by the county department of social services in whose custody the juvenile is placed, provided the juvenile is not receiving care in an institution owned or operated by the State or federal government or any subdivision thereof.

(d1) At the dispositional hearing or a subsequent hearing, the court may order the parent, guardian, custodian, or caretaker served with a copy of the summons pursuant to G.S. 7B-407 to do any of the following:

(1) Attend and participate in parental responsibility classes if those classes are available in the judicial district in which the parent, guardian, custodian, or caretaker resides.

(2) Provide, to the extent that person is able to do so, transportation for the juvenile to keep appointments for medical, psychiatric, psychological, or other treatment ordered by the court if the juvenile remains in or is returned to the home.

(3) Take appropriate steps to remedy conditions in the home that led to or contributed to the juvenile's adjudication or to the court's decision to remove custody of the juvenile from the parent, guardian, custodian, or caretaker.

(e) Upon motion of a party or upon the court's own motion, the court may issue an order directing the parent, guardian, custodian, or caretaker served with a copy of the summons pursuant to G.S. 7B-407 to appear and show cause why the parent, guardian, custodian, or caretaker should not be found or held in civil or criminal contempt for willfully failing to comply with an order of the court. Chapter 5A of the General Statutes shall govern contempt proceedings initiated pursuant to this section.

History. Amended by 2001-487, s. 101, eff. 12/16/2001.

Amended by 2001-208, s. 3, eff. 1/1/2002.

1979, c. 815, s. 1; 1983, c. 837, ss. 2, 3; 1987, c. 598, s. 2; 1989, c. 218; c. 529, s. 7; 1995, c. 328, s. 2; 1995 (Reg. Sess., 1996), c. 609, s. 4; 1997-456, s. 1; 1998-202, s. 6; 1999-318, s. 7; 1999-456, s. 60.


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No where in here does it say CPS has the right to order the parent to do ANYTHING.