Sad child DSS Custody

How does the process start for DSS to take custody of your child? 

Pursuant to NC G.S. 7B-301, any adult that suspects a child is being abused or neglected must report the suspected abuse or neglect to the local department of social services, which is called DSS. The report should be made in the county where the child lives.

DSS Assessment

Once a report is received, the DSS branch called Child Protective Services (CPS) will determine whether the report warrants an investigation. If CPS believes the report does warrant an investigation, a CPS caseworker will visit the home of the child and interview the child’s parents or caretakers within 24-72 hours depending on the severity of the report. In high-risk situations, CPS will immediately investigate. High-risk includes the following:

  • A child at imminent risk of harm resulting from neglect,
  • Physical abuse of a preschool child,
  • A child under the age of six is left alone,
  • A child being sexually abused,
  • A child being tormented or tortured,
  • A child in a life-threatening situation,
  • A child under the age of 12 who self-refers or refuses to go home
  • A report of a child’s death as a result of maltreatment and there are other children present in the home or if it is unknown if there are other children,
  • All reports of abandonment.
  • Any time the agency determines that an immediate response is indicated.

If you have an attorney, you have the right to have your attorney present during your meeting with CPS. You should take the meeting seriously and prepare ahead of time for the meeting. In preparing for the meeting, you should clean your home, mow the grass, and stock your cabinets and frig with food. Don’t drink or use any drugs prior the meeting. You should dress nicely for the meeting. During the meeting, be polite, don’t use curse words, don’t smoke, and remember that the worker is just doing their job.

CPS will also interview anyone named in the initial report. They make interview other people who know your family or talk to your child’s doctor or teachers.

CPS will assess whether your child has been abused or neglected. If the child has been abused or neglected, CPS will immediately remove the child from the home to protect the child. Anytime CPS removes a child from the home, they must file an abuse, neglect, or dependency petition with the district court in the county where the child lives.

CPS has two options for completing the assessment. Investigative Assessments are used when allegations of child abuse or in serious cases of neglect. Investigative assessments may involve law enforcement. Typically, the investigation will be completed within 30 days and CPS will issue a report as to whether the allegations are substantiated or not. Family assessments are the most frequently used and are completed within 45 days.

Safety Assessment

In both types of assessments, the CPS worker completes a safety assessment and a safety plan. CPS will provide you with a copy of the Safety Assessment. They may ask you to sign the Safety Assessment. The Assessment will state whether your home is safe for your child, conditionally safe, or not safe. In situations where the worker believes the child is at risk for serious harm, you may be asked to temporarily place your child with a family member. These are often called safety resource placements. Safety resource placements are meant to be short-term to allow CPS to identify safety issues and have the parents correct them.

The safety resource placement cannot require a parent to have supervised visitation with their child. Only a court can require supervised visitation. If you agree to a safety agreement, as a parent you have a right to revoke the agreement at any time. However, if you revoke the agreement CPS may determine that your child is in danger and they may file with the court to seek custody of your child. DSS is required to monitor your case and return your child home as soon as it is safe to do so.

At the end of the investigation, CPS will send a letter to you stating whether your child has been abused or neglected. If CPS confirms abuse or neglect, they may offer you In-home services or they may move forward with taking legal custody of your child.

Temporary Custody

If a CPS worker or law enforcement officer, believes that your child has been abused or neglected and would be in danger if they wait to get a court order, they can take temporary physical custody of your child. They can only keep your child for 12 hours unless it is a weekend and then it can last up to 24 hours. If the CPS worker decides that they need to keep your child beyond that time frame, they must appear in front of a district court judge and obtain a nonsecure custody order.

Nonsecure Custody

DSS may request a nonsecure custody order if the child’s circumstances meet the statutory requirements. A court may only order nonsecure custody if:

  1. A reasonable factual basis exists that the allegations in the DSS petition are true,
  2. and at least one of the following applies:
    1. the child is abandoned;
    2. the child suffered physical abuse or was sexually abused;
    3. the child is exposed to substantial risk of physical injury or sexual abuse;
    4. the child’s parent or guardian won’t consent to medical treatment that would cure the child or prevent the child from suffering serious harm;
    5. the parent or guardian consents; or
    6. the child is a runaway who consents to the order, and
  3. a reasonable factual basis exists to believe that there are no other reasonable means to protect the child.

If the court denies the request, DSS must return the child to the parent or guardian. DSS does not have the right to keep the child after a judge denies the request.

The Nonsecure Custody Order

The initial nonsecure custody order, if issued by the court, is only effective for 7 calendar days or 10 business days. The court must hold another nonsecure hearing within this time period. DSS does not have to prove the allegations during the nonsecure hearing. The judge only decides whether if keeping your child out of the home is necessary.

The police can enter your home to execute the nonsecure custody order.

Adjudication Hearing

An adjudication hearing must be held within 60 days of the date the initial petition was filed unless the judge decides there is good cause to delay it. DSS must prove the allegations in the petition by clear and convincing evidence. The clear and convincing evidence standard means that the judge must substantially believe the allegations are more likely to be true than not. If the judge decides that DSS hasn’t met its burden, the judge will dismiss the case. If the judge decides the allegations met the standard, the judge will then decide if your child has been abused or neglected.

Disposition Hearing

The disposition hearing is sometimes held on the same day as the adjudication hearing or it may happen up to 30 days later. The parties can give the court information on what they believe should happen to the children.

During the disposition hearing, the judge decides the plan for your child. This includes where your child will live, whether a family member can take care of your child, your visitation rights, and what services you or your child may need. The judge can order substance abuse treatment, parenting classes, or counseling.

The stated goal is to reunite parent and child.

Review Hearings

Within 90 days of the disposition hearing, the court must have a review hearing. After the first review hearing, the court will hold a review hearing at least every 6 months. At each review hearing, the judge is told about how the parent is doing with the plan, how the child is doing, and whether anything else needs to be addressed.

Permanency Planning

Within 12 months of your child being removed from your home, the court will have a permanency hearing. The hearing must be held at least every six months. At the hearing, the parties present evidence to the judge about the plan to get a permanent and safe home for the child within a reasonable period of time. The court can decide whether the plan is to return the child home to parents, place the child with someone else or move toward terminating the parent’s parental rights so that the child can be adopted.

 

 

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Angela McIlveen
CEO/Partner Attorney
Angela McIlveen is a founding Partner Attorney at the McIlveen Family Law Firm. As a partner at the McIlveen Law Firm, she handles cases in family law including child custody and support, divorce, alimony, adoption, separation, domestic violence and equitable distribution. She is often called upon to teach CLE classes to other attorney and to speak at events.

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