Q: I am a single mother of two children, a five-year old son and a one-month-old daughter. Their father lives in another state and does not visit or provide support. I do not have a job, health insurance, or a home, so I live at a shelter. Children Services came out and took both my children, saying that I was not caring for them properly. Can they do this?
A: Yes. Children Services (“the agency”) has both the right and the legal obligation to investigate when they hear about improper or questionable care of children. They have the right to take children into custody if they find evidence that a child is being neglected or abused, or the child is a runaway, has been abandoned, or is suffering from illness. The agency also has the right to take children into custody when they are considered “dependent,” meaning that they are homeless or destitute or lacking proper care or support due to their parents’ situation, even if through no fault of the parents.
Q: How long can the agency keep my children?
A: After your children have been taken into custody, the agency can apply to the juvenile court for an “ex-parte emergency order” asking the court to review its request to keep your children in custody. The court hears this request without you being present, and will determine if the agency had “probable cause” to take your children, and whether the agency made reasonable efforts to notify you beforehand, providing you with the reasons for the removal (unless the agency felt that providing explanations might endanger your children). If the court grants the agency’s request for the ex-parte emergency order, the agency may keep your children temporarily until the agency files a formal complaint with the court explaining why your children were removed. The court must review the formal complaint within 72 hours of the time the agency first took your children into custody.
Q: When do I go to court to give my side of the story?
A: You must be notified of the formal complaint hearing and given a copy of the complaint that explains why the children were taken and what the agency wants to do (such as to get temporary or permanent custody of your children). You and the children’s father will receive a “summons,” telling you when and where the hearing will be held, what the hearing is about, and that you have a right to a lawyer at the hearing. This hearing is called a “preliminary hearing” or a “shelter care hearing.”
Q: What happens at that hearing?
A: The court will make sure that the complaint has been properly filed in the right court, determine whether the agency has given you and the children’s father reasonable oral or written notice of the time, place, and purpose of the hearing as well as instructions about preparing a case plan (including the general requirements of that case plan, and what happens if you do not comply with the case plan). The court will also advise you and all involved parties of their right to counsel. If you cannot afford an attorney and you qualify financially, the court will provide one for you. The court will also appoint a guardian ad litem to protect your children’s best interests.
At the hearing, you may tell the court your side of the story, and what you believe to be in our children’s best interest. The court will determine if probable cause exists for a trial or if the complaint should be dismissed. The court will also decide where your children will remain and what must be done before the next hearing date.
This “Law You Can Use” column was provided by the Ohio State Bar Association (OSBA). It was prepared by Columbus attorney Michael N. Oser.