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Abuse, Neglect and Foster Care

Authored By: Central Virginia Legal Aid Society, Inc. LSC Funded

Information

There are two ways you can be found to have abused or neglected your child. One is through the Department of Social Services (DSS). The other is through the Juvenile and Domestic Relations (J&DR) Court. However, only a court has the power to remove a child from your home.

What are the reasons a child can be removed from my home?

Under Virginia law, your child may be removed if all of these things are true.

• There is an immediate threat to your child's life or health.

• The threat is so great that severe or incurable injury would likely result.

• Reasonable efforts have been made to prevent removal of your child.

• Nothing else will protect your child.

How does a court removal case start?

Removal cases may start one of three ways. An authorized person may take emergency custody of your child. DSS may get an emergency removal order before you have notice of a court hearing. DSS also may get a preliminary removal order after you have notice of a court hearing.

What happens when someone takes emergency custody?

A doctor, DSS protective service worker or law enforcement official may take emergency custody of your child. This can be done without your consent and without a court order. However, all of the following things must be true.

• Your child is in immediate danger.

• A court order can't be gotten right away.

• Procedures exist for placing your child in temporary foster care.

• You and the other parent are notified as soon as possible.

• A report is made to DSS.

If a doctor, DSS protective service worker or law enforcement official tries to take emergency custody of your child, you should not argue or object. Within 72 hours of removal, an emergency removal hearing or preliminary removal hearing must be held. You and the other parent must be given court papers telling you the date, time and place of the hearing. You will have a chance then to say your side of the story.

What happens when a court issues an emergency removal order?

DSS may petition the J&DR Court for an "ex parte" emergency removal order before removing your child and before giving you notice of a hearing. Ex parte means that only one side (DSS) gets heard. The petition from DSS must be supported by an affidavit or sworn testimony. If the order is issued, DSS immediately may remove your child. If this happens, again, you should not argue or object. Within 5 business days of removal, a preliminary removal hearing must be held. You and the other parent must be given court papers telling you the date, time and place of the hearing. You will have a chance then to say your side of the story.

What happens when a court issues a preliminary removal order?

DSS also may petition the J&DR Court for a preliminary removal order before removing your child and after giving you notice of a hearing. This requires prior notice to you and the other parent telling you the date, time and place of the hearing. This gives you a chance to say your side of story before your child is removed. After this hearing, the court may issue an order allowing DSS to remove your child. Again, if this happens, you should not argue or object. You will have a chance to improve your situation and have your child returned to you. In addition, you also will have a chance to appeal.

How do I get my child returned to me?

Within 60 days of removal, DSS must file and have a hearing on a Foster Care Service Plan. DSS must give you a copy of this plan. This plan must set forth DSS's goals for your child, and the dates for reaching those goals. The plan also must set forth DSS's goals for you and the other parent, and the dates for reaching those goals. In addition, the plan must set forth the services DSS will provide to child and to the parents.

What services will DSS provide?

DSS must allow you to visit with your child. Most of the time, this will be at the DSS office and will be supervised by DSS. However, you may ask the judge to order that some responsible adult supervise your visitation. DSS also may provide you these following services.

• Parenting classes.

• Anger management classes.

• GED classes or other education.

• Mental health counseling.

• Alcohol abuse or substance abuse counseling.

• Financial and budgeting counseling.

• Help in finding work.

• Help in finding housing.

How do I appeal?

If you don't agree with decision of the judge in J&DR Court, you can appeal your case to Circuit Court. You may only appeal a "final" order from the J&DR Court. If you want to appeal a preliminary removal order, you need to be sure the judge in the J&DR Court writes on the order that it is "final" or "appealable."

You must go to the J&DR Court clerk's office within 10 days of the order and file a written Notice of Appeal. You probably will need a lawyer to help with the appeal. Procedures in the Circuit Court are more complicated.

Are there abuse and neglect cases that are not in court?

Yes. DSS may do an abuse and neglect case outside of court. By law, DSS must look into and investigate every complaint they receive about possible abuse or neglect of a child. This is true even if the person making the complaint does not tell their name. If you are contacted by DSS about an abuse or neglect complaint, be polite and cooperative. DSS is just doing their job. If DSS makes a finding you don't agree with, you will have a chance to appeal.

DSS must tell you, in writing, whether an abuse or neglect complaint is "founded" or "unfounded." DSS must do that within 45 days of receiving the complaint. A founded complaint means the majority of the evidence shows it is true. An unfounded complaint means the majority of the evidence shows it is not true.

Unfounded complaints must be destroyed and shredded within 30 days after DSS tells you the complaint was unfounded.

What happens to a founded complaint?

Founded complaints are stored in a Central Registry in Richmond. They are stored for 3, 5, or 18 years. This depends on how serious the founded complaint is. Only certain groups can get this information from the Central Registry. These include schools, day care centers, and any place around children. If your name is on the Central Registry, you are very unlikely to get a job around children or other people needing protection.

You have 30 days after getting notice of a founded complaint to file a written request for an informal conference with the local DSS Director. You must be told the date, time and place of the conference. This gives you a chance to say your side of story and why your child wasn't abused or neglected.

If you disagree with the Director's decision, you have 30 days after getting the decision to file a written request for a hearing with a State Hearing Officer. You must be told the date time and place of the hearing. This gives you another chance to say your side of story and why your child wasn't abused or neglected. If you disagree with the Hearing Officer's decision, you have 30 days after getting the decision to file an appeal to Circuit Court.

How do I find out the name of the person who made an unfounded complaint?

You would have to file a Petition in the Circuit Court. You would have to show that the complaint was made in bad faith. Even if you show the complaint was made in bad faith, you may not get the name of the person who made it. This is because a person who makes a complaint to DSS of possible child abuse or neglect does not have to tell their name.

Last Review and Update: Apr 27, 2006