The preliminary hearing in a child neglect case is important
We defend a lot of child abuse or neglect cases where CPS has filed a petition alleging that parents have either neglected or abused their kids. These petitions are very common when there are criminal allegations against mom or dad, but are also frequently filed when there are no criminal charges pending.
When CPS files a petition with the Family Division of the Circuit Court (previously the Probate Court), they may try to get the judge to authorize an emergency removal of your children. If the judge signs this order and the children are removed from your care, you’re entitled to a hearing in front of a Circuit Court Judge or Referee within 24 hours of the removal. This hearing is called a “preliminary hearing” or sometimes called an “emergency removal hearing”.
At the preliminary hearing, the petitioner (usually CPS) must present evidence to prove that there is probable cause to believe that one or more of the allegations in the petition is true. If the judge finds one or more of the allegations to be true, he will authorize the filing of the petition. The Rules of Evidence do not apply at this hearing, which means that hearsay is admissible. The CPS worker frequently takes the stand and testifies to statements that were made to other people and relayed to the CPS worker.
If the Judge or Referee decides to authorize the filing of the petition, he will then have to decide where to place the children pending a jurisdiction trial. Generally speaking, the judge will either place the child in foster care, with one parent or with a relative. If the child is placed outside of the home, the judge must usually order parenting time between the child and parent.
Because of the very short timeline, we’re frequently hired after the preliminary hearing. In many cases, the parents show up to the preliminary hearing and a court-appointed attorney convinces them to waive the preliminary hearing and consent to the filing of the petition. I’ve seen more than one case where CPS was asking for termination of parental rights and the court-appointed attorney still advised the parent to waive the probable cause determination. In one case, the court-appointed attorney failed to explain to the parents that they had a right to make the CPS worker testify under oath about the reasons she claimed supported the petition.
The preliminary hearing may be your only opportunity to cross-examine the CPS workers and lock in their stories before you have a jurisdiction trial. If you intend to fight CPS, you should probably take testimony at the preliminary hearing. If you have been notified that a preliminary hearing is going to be held, you should consult with a competent CPS defense attorney. If you don’t have time to do so, you should certainly understand every decision that you make. Don’t let an attorney rush your decision or convince you to do something that you don’t agree with.
If you would like to discuss your child abuse or neglect case, please call us at (616) 244-2234.