A few years ago, a suit was filed against two Arkansas Department of Human Services caseworkers alleging families’ rights were violated in custody cases. The two state caseworkers were accused of regularly taking children away from their parents and putting them in state custody without making sure the parents got their hearings in a timely manner. The caseworkers were said to delay the paperwork needed to start the custody process in court. The suit stated that families’ civil rights were violated for years. It further questioned whether the state’s laws involving child abuse custody cases were constitutional. Hundreds of families were said to have been subjected to the violations, therefore, a class-action suit was filed to represent all families affected by the DHS’s actions. Ultimately, US District Judge Leon Holmes said the two caseworkers of the Arkansas Department of Human Services were not to blame for the delays as they were said to have followed appropriate protocol.
Under Arkansas law, designated department employees are authorized to take a child into protective custody without a court order for up to 72 hours under some circumstances such as an immediate danger to the child’s health or physical well-being. During that 72-hour period, a petition should be filed asking a judge to put the child in protective custody. The caseworker is required to provide notice to the parent and begin the process necessary for the hearing. If the petition is granted, the court can issue an order for emergency custody, but Arkansas law requires the probable cause hearing be scheduled within five business days of the order. The timeliness of these hearings is important because 1) it is the first opportunity for parents to formally try to get their children back and 2) if no probable cause is found it reunites separated families quickly.
Back to the two caseworkers initially charged and the requirement of them to act in a timely fashion, under Arkansas law, the circuit court, not the DHS social worker, should be charged with providing a timely hearing. Arkansas Code Annotated 9-27-315(a) requires a circuit court to hold a probable cause hearing within five business days of the issuance of ex-parte order (an order made without the other party being made aware of, i.e., the parent in this case) that grants the state emergency custody of a child in order to allow DHS time to determine whether there is probable cause to issue the emergency order and whether it should continue. If no probable cause is found, the child will be returned home immediately. However, if probable cause is found, within 30 days the court will hold an Adjudication Hearing. An Adjudication Hearing is a trial where people come to court and take an oath to tell the truth and testify about the matter at hand. During this hearing, the court will determine whether to adjudicate the child as dependent, neglected, or abused. If the court does not find any of these, the child will be returned home. If the court does find the child is dependent, neglected, or abused, the court will move forward to the Disposition Hearing. This hearing will set forth a six-month plan for the child and the parent. The court will also determine who will have temporary custody of the child and what the visitation will be. DHS will also be ordered to provide services to the parent(s) to help solve the problems. There will be a Six Month Review Hearing to see if the problem has been resolved or if other plans need to be made for the child’s future. The court can decide to hold additional Six Month Review Hearings if it so chooses. If the problem has not been resolved, the court will hold a Permanency Planning Hearing to decide if it is in the child’s best interest to be adopted. If so, the court will set a Termination Hearing to terminate the parental rights.
If you feel are faced with situations involving DHS, call Kevin Hickey Law Partners today to know your rights and the appropriate steps you must take. Our professional staff is here for all your family law needs whether it’s a DHS matter, visitation, child custody, child support, or divorce we’ve got you covered. Give us a call; you’ll be glad you did.
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