§587-24  Temporary foster custody without
court order.  (a)  When the department receives physical custody of a child
from the police pursuant to section 587-22(b), the department shall assume
temporary foster custody of a child without an order of the court and without
the consent of the child's family regardless of whether the child's family is
absent, if in the discretion of the department the child is in such
circumstance or condition that the child's continuing in the custody or care of
the child's family presents a situation of imminent harm to the child.



(b)  Upon assuming temporary foster custody of
a child under this chapter, the department promptly shall make every reasonable
effort to inform a legal custodian of the child of the actions taken concerning
the child; provided that the department may withhold such information from the
child's family concerning the child as, in its discretion, is deemed to be in
the best interests of the child.



(c)  Upon assuming temporary foster custody of
a child under this chapter, the department shall place the child in emergency
foster care, unless the child is admitted to a hospital or similar institution,
while it conducts an appropriate investigation; provided that placement
preference for emergency foster care shall be given to the appropriate relative
identified by the department.  The department and authorized agencies shall
make reasonable efforts to identify all relatives within six months of assuming
foster custody of the child.



(d)  Any physician licensed or authorized to
practice medicine in this State presented with a child who is under the
temporary foster custody of the department shall perform such an examination of
the child, with or without the consent of the child's family, as is required in
order to determine the nature and extent of any imminent harm, harm, or
threatened harm to the child.



(e)  Within three working days, excluding
Saturdays, Sundays, or holidays, after the date of its assumption of temporary
foster custody, the department shall:



(1)  Relinquish its temporary foster custody and
return the child to the child's legal custodian and proceed pursuant to section
587-21(b)(1), (2), or (4);



(2)  Continue its assumption of temporary foster
custody of the child with the child being voluntarily placed in foster care by
the child's legal custodian and proceed pursuant to section 587-21(b)(2) or
(4); or



(3)  Continue its assumption of temporary foster
custody of the child and proceed pursuant to section 587-21(b)(3). [L 1983, c
171, pt of §1; am L 1986, c 316, §9; am L 1992, c 190, §9; am L 1998, c 134, §8;
am L 2008, c 199, §5]



 



Case Notes



 



  Where child protective service caseworker's seven-day delay
in filing a court petition for temporary custody violated state law (pre-1998
amendment), the state law did not clearly establish a federal right at the time
caseworker removed appellant's children.  Neither the seven-day delay before
obtaining post-deprivation judicial review, nor the seven-day delay before
filing a court petition, violated appellant's federal due process rights.  141
F.3d 927.



  Children's "rearrest" did not extend deadline for
filing petition for temporary custody, thus defendant and department of human
services exceeded period allotted for filing petition under this section (pre-1998
amendment) by approximately five days.  949 F. Supp. 1461.



  Defendant entitled to qualified immunity because it was not
clearly established law at the time that it would violate plaintiff's
procedural due process rights to wait seven days to petition family court for
order ratifying emergency custody over plaintiff's children.  949 F. Supp.
1461.