The First Hearing: The Arraignment Detention Hearing
Once the social worker’s investigation of alleged child abuse or neglect is completed, in most situations the social worker may file a request with the juvenile court for a warrant or court order to take away your child/ren. This is known as “detaining” or “taking your children into custody.” Once that is done, the social worker must inform you of the court hearing. And the hearing is supposed to be within 48 hours, and there is some authority that permits the hearing to be with 72 hours of the social worker detaining your child/ren. If the hearing falls outside this period, make sure your attorney argues that the case be dismissed, thrown out for violation of California law.
It is EXTREMELY important at this hearing that you bring as many relatives and family friends to appear at the court. The purpose of these folks being at the hearing is to show the court that there are people in the community, who vote, that are concerned about the family and these children. Next, these folks are resources for possible placement of the children in the event the children are in foster care with strangers.
In California, parents are represented by a court appointed attorney, or parents may hire their own private attorneys. Generally, each county takes steps to recover money from the parents for the cost of the court appointed attorneys. And generally, all private attorneys charge for their services, like any other privately hired attorney. If you are unable to afford a private attorney, the court will appoint an attorney for you. At any time after this, you may hire a private attorney to represent you in the court proceedings.
The primary purpose of the arraignment hearing is twofold. And let me warn you, the hearing goes by extremely fast. So fast, that most parents walk out of the first hearing with their head spinning, wondering what just happened. I mention this so that your expectations are properly managed. You should not go into this hearing expecting that there is going to be a full trial and hearing. That won’t be the case because that is not how the law is set up.
First, is the Arraignment Hearing. In this part of the court proceeding your attorney should inform you of that you are entitled to a trial within 15 court days, if your children were detained, and 30 court days if you children were not taken out of your custody. Most courts in California, due to court congestion, do not follow this time frame; and if you and your attorney don’t insist on following this time line, you will lose your right to speedy hearings.
Now, it may be a better legal strategy to not have speedy hearings. But, you should at least be made aware of these rights so that you can assist your attorney in deciding what would be the best strategy for you and your particular case.
In most courts and with most juvenile judges, the case proceeds with a court date in about 3 or 4 weeks with the Receipt of Report. In Los Angeles County, it is referred to the ROR date. The Report is a report prepared by a Juvenile Dependency Investigator (“DI”). Usually, by the time you have the hearing you will have NOT met the DI. S/he is assigned usually assigned the case the after the Arraignment Hearing. It is the DI’s job to objectively investigate the allegations against you. The DI performs this investigation by interviewing the parents, the children and other witnesses. The DI may also gather documents for this investigation. Documents may include, but are not limited to police reports and medical records. I generally advise my client NOT to speak to social workers, including the DI, unless I am there. Too many things can happen when you meet the social worker or DI by yourself. Many attorneys do not agree with this advice; but I’ve been doing this for over 25 years. And I like to play the probabilities with my clients, and I don’t like to take unnecessary legal risks.
Once your lawyer informs the judge how you proceed in the case, the court will go right into the detention hearing. If I didn’t say this before, let me say it now. You should have input into how your case is going to proceed at the arraignment hearing. So many times, client who hire me after that hearing tell me the attorney didn’t tell me I had alternatives. Sometimes, choosing the wrong alternative may hurt your case and it will take more work to correct that mistake.
At the detention hearing the judge will decide if the children should remain detained out of your custody, or return to your custody. This can be a tricky situation. California law requires that the juvenile judge accept as true, all of the social worker’s allegations (but only at this hearing. After this hearing, the social worker must prove something is true). Before going into the hearing, you and your attorney should review the documents filed with the court and develop a strategy to present to the judge to convince the judge that the children should be returned to you or to relatives or family friends. If you don’t have this meeting before the hearing, the odds of you getting the children back or with family drop dramatically.
If the children are not returned to your custody, the attorney should then argue about your visitation; frequency and duration. Frequency meaning will you have visitation 1 time per week, 3 times per week or 7 days per week. Duration meaning, how long will the visitations be, 1 hour, 5 hours or 8 hours. For some reason, I notice that these issues are not always argued by the parents’ lawyer. And obviously, if your children are removed from your custody, visitation could be of great concern. Again, you should be meeting with the lawyer before you go into the court room to decide what you’re argument will be with respect to visitation with your children.
All of the issues discussed here in can be far more complex. If you’d like to discuss these issues, please give me a call for a consultation.