8-824

8-824. Preliminary protective hearing; probable
cause; appointment of counsel

A. The court shall hold a preliminary protective hearing to review the taking into
temporary custody of a child pursuant to section 8-821 not fewer than five days nor more
than seven days after the child is taken into custody, excluding Saturdays, Sundays and
holidays. If clearly necessary to prevent abuse or neglect, to preserve the rights of a
party or for other good cause shown, the court may grant one continuance that does not
exceed five days.

B. The following persons shall be present at the preliminary protective hearing:

1. The child's parents or guardian, unless they cannot be located or they fail to
appear in response to the notice.

2. Counsel for the parents if one has been requested or retained.

3. The child's guardian ad litem or attorney.

4. The protective services worker.

5. Counsel for the protective services worker.

C. If the court finds that it is in the best interests of the child, the court may
allow the following to be present at the preliminary protective hearing:

1. The child.

2. Any relative or other interested person with whom the child is or might be
placed as described in section 8-845, subsection A.

3. Witnesses called by the parties.

4. An advocate or interested person as requested by the parent or guardian.

5. Other persons who have knowledge of or an interest in the welfare of the child.

D. At the hearing, the court shall advise the parent or guardian of the following
rights:

1. The right to counsel, including appointed counsel if the parent or guardian is
indigent.

2. The right to cross-examine all witnesses who are called to testify against the
parent or guardian.

3. The right to trial by court on the allegations in the petition.

4. The right to use the process of the court to compel the attendance of witnesses.

E. At the hearing, the court:

1. Shall receive a report of any agreement reached pursuant to section 8-823,
subsection D. The report may be made orally.

2. Shall provide an opportunity for the child's parent or guardian, if present, and
any other person who has relevant knowledge, to provide relevant testimony.

3. May limit testimony and evidence that is beyond the scope of the removal of the
child, the child's need for continued protection, placement, visitation and services to
be provided to the child and family.

4. May take into consideration as a mitigating factor the participation of the
parent or guardian in the healthy families program established by section 8-701.

5. Shall take into consideration as a mitigating factor the availability of
reasonable services to the parent or guardian to prevent or eliminate the need for
removal of the child and the effort of the parent or guardian to obtain and participate
in these services.

6. Shall inform the child's parent or guardian that the hearing may result in
further proceedings to terminate parental rights.

7. Shall order the parent or guardian to provide the court with the names, the type
of relationship and all available information necessary to locate persons who are related
to the child or who have a significant relationship with the child. If there is not
sufficient information available to locate a relative or person with a significant
relationship with the child, the parent or guardian shall inform the court of this fact.
The court shall further order the parent or guardian to inform the department immediately
if the parent or guardian becomes aware of information related to the existence or
location of a relative or person with a significant relationship to the child.

8. Shall inform the parent that substantially neglecting or wilfully refusing to
remedy the circumstances that cause the child to be in an out-of-home placement,
including refusing to participate in reunification services, is grounds for termination
of parental rights to a child.

9. Shall give paramount consideration to the health and safety of the child.

10. Shall determine whether the department is attempting to identify and assess
placement of the child with a grandparent or another member of the child's extended
family including a person who has a significant relationship with the child.

11. Shall inform a foster parent, a preadoptive parent or a member of the child's
extended family with whom the department has placed the child of the right to be heard in
any proceeding to be held with respect to the child.

F. The petitioner has the burden of presenting evidence as to whether there is
probable cause to believe that continued temporary custody is clearly necessary to
prevent abuse or neglect pending the hearing on the dependency petition.

G. The department must make reasonable efforts to place a child with siblings and,
if that is not possible, to maintain frequent visitation or other ongoing contact between
all siblings.

H. If the child is in the temporary custody of the department, the department shall
submit not later than the day before the hearing a written report to the court and the
parties that states:

1. The reasons the child was removed from the parent's or guardian's custody.

2. Any services that have been provided to the child or the child's parent or
guardian to prevent removal.

3. The need, if any, for continued temporary custody.

4. The types of service needed to facilitate the return of the child to the custody
of the child's parents or guardian.

5. If the child is not placed with a grandparent, whether the child has any
relatives or other interested parties as described in section 8-845, subsection A who may
be able and willing to take temporary custody.

6. Any services that are requested by the parent or guardian but that are not
provided and the reasons the services were not provided.

7. What efforts the department has made to place siblings together, and if they are
not placed together, the specific reasons why this did not occur.

8. If the placement of siblings together was not possible for all or any of the
siblings, efforts the department has made to facilitate communications among siblings and
a proposal for frequent visitation or contact pursuant to subsection G of this section.
If frequent visitation or contact with siblings is not recommended, the department shall
state the reasons why this would be contrary to the child's or a sibling's safety or
well-being.

9. A proposal for visitation with the child's parents or guardian and the results
of any visitation that has occurred since the child was removed.

10. A proposed case plan for services to the family.

I. The parent or guardian shall state whether the parent or guardian admits or
denies the allegations in the petition filed pursuant to section 8-841. If the parent or
guardian admits or does not contest the allegations in the petition, the court shall
determine that the parent or guardian understands the rights described in subsection D of
this section and that the parent or guardian knowingly, intelligently and voluntarily
waives these rights.

J. At the hearing, if the child is not returned to the parent or guardian, the
court shall:

1. Enter orders regarding the placement of the child pending the determination of
the dependency petition and visitation, if any.

2. If a relative is identified as a possible placement for the child, notify the
relative of the right to be heard in any proceeding to be held with respect to the child.

3. Determine if the tasks and services set forth in the case plan are reasonable
and necessary to carry out the case plan.