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Child Protective Act Decree Form. This is a Idaho form and can be use in District Court Statewide.
Tags: Child Protective Act Decree, Idaho Statewide, District Court
Decree and Order Under Child Protective Act
IN THE DISTRICT COURT OF THE ^^^^^ JUDICIAL DISTRICT OF
THE STATE OF IDAHO, IN AND FOR THE COUNTY OF ^^^^^
IN THE MATTER OF:
)
)
)
)
)
)
[A Child][Children] Under Eighteen
)
Years of Age.___________________________ )
Case No. ^^^^^
[AMENDED] CHILD PROTECTIVE
ACT DECREE:
[ ] Granting Legal Custody to IDHW
[ ] Placing Child Under Protective
Supervision of IDHW
AND ORDER
This case came before the court on _____________________________, for an
adjudicatory hearing1 [re-disposition hearing]2 pursuant to the Child Protective Act,
Idaho Code Title 16, chapter 16. The court makes the following findings of fact,
conclusions of law, and order, based on the record at the hearing.
1.3
a.
The following parties were present for the hearing, represented by
the following counsel: __________________________________________________
_____________________________________________________________________.
[OPT]
b.
The following parties were not present for the hearing: _________
_____________________________________________________________________.
[OPT]
c.
The file shows that notice was given to ______________________
[the absent party] in the following manner: ___________________________________.
[OPT]
d.
The following parents and/or legal guardian of the child has [have]
not appeared, the court file does not show that service of process has been completed, and
further steps to identify, locate, and serve these persons are [this person is] necessary:
_______________________________________________________________________.
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[OPT] 2.4
This order is entered consistent with the stipulation of the parties. The
court finds that all parties entered into the agreement knowingly and voluntarily, that the
agreement is in the best interests of the child, and that the stipulation has a reasonable
basis in fact.
3.
A petition has been filed in this case pursuant to the Child Protective Act.
4.
The court has jurisdiction over this case in that the child [each child] lives
or was found in the state of Idaho.
5.5
The child is not an Indian child [children are not Indian children] within
the meaning of the Indian Child Welfare Act, 25 U.S.C. §§ 1901 - 1963.
[ALT] 5.
a.
The child is an Indian child [children are Indian children] within
the meaning of the Indian Child Welfare Act, 25 U.S.C. §§ 1901 to 1963. The child is a
member [children are members] of, or is [are] eligible for membership in, the _________
Tribe.
b.
The court file contains proof that notice has been given to the
Indian custodian, Indian Tribe, or Secretary of the Interior, as required by the Act.
[ALT]
b.
The court file does not contain proof that notice has been given in
accordance with the Indian Child Welfare Act. Further steps are necessary to serve
process in accordance with the act and to document completion of service in the court’s
file.
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[ALT] 5.
At the present time, it cannot be determined whether the child is an Indian
child[children are Indian children] within the meaning of the Indian Child Welfare Act,
25 U.S.C. § 1901-1963. Further steps are necessary to determine whether the child is an
Indian child [children are Indian children].
6.
The child comes [children come] within the jurisdiction of the court under
the Child Protective Act, due to:
a.
abandonment
[ALT]
b.
abuse
[ALT]
c.
neglect
[ALT]
d.
homelessness
[ALT]
e.
lack of a stable home environment
[ALT]
f.
the court’s assertion of jurisdiction over another child,
_________________[name[s], listed in this petition, and the child is [children are] living
or has [have] custodial visitation in the same household and has [have] been exposed to
or is [are]at risk of being a victim [victims] of abuse, neglect or abandonment.
[OPT] 7.
a.
The petition alleges that the parent [parents] subjected the child
[children] to aggravated circumstances pursuant to Idaho Code § 16-1619(6)(d). The
court finds and concludes that the parent [parents] subjected the child to aggravated
circumstances.
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[ALT] 7.
a.
The petition alleges that the parent [parents] subjected the child
[children] to aggravated circumstances pursuant to Idaho Code § 16-1619(6)(d). The
petitioner has not sustained its burden of proof on this allegation.
b.
Specifically, the court finds and concludes as follows:__________
_______________________________________________________________________.
8.6
It is contrary to the welfare of the child [children] to remain in the home.
It is in the best interest of the child [children] to vest legal custody of the child [children]
in the Idaho Department of Health and Welfare.
a.
The court makes this finding based on the information set forth in
_________________, prepared by ____________________, and dated ____________,
which is incorporated by reference in this order.
[ALT]
a.
Specifically, the court finds and concludes as follows:
______________________________________________________________________.
[OPT]
b.
It is fair and equitable that [the father] [the mother] [the parents]
pay child support in the amount of __________ each month.
[ALT] 8.
The safety and welfare of the child [children] can be adequately
safeguarded by placing the child [children] under the supervision of the Idaho
Department of Health and Welfare in the child’s [children’s] own home. [To ensure the
safety and welfare of the child [children], the placement of the child [children] at home
should be subject to the following conditions:_________________________________
_____________________________________________________________________.]
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9.7
a.
Reasonable efforts were made prior to placement of the child
[children] in shelter/foster care to prevent the need for placement of the child [children]
in shelter/foster care.
b.
The court makes this finding based on the information set forth in
____________________ , prepared by ______________, and dated ______________,
which is incorporated by reference in this order.
[ALT]
b.
Specifically, the court finds and concludes as follows:
_______________________________________________________________________.
[ALT] 9.
a.
The Department made reasonable efforts to prevent removal but
was not able to safely provide preventive services.
b.
The court makes this finding based on the information set forth in
____________________ , prepared by ______________, and dated ______________,
which is incorporated by reference in this order.
[ALT]
b.
Specifically, the court finds and concludes as follows:
_______________________________________________________________________.
[ALT] 9.
The Idaho Department of Health and Welfare was not required to make
reasonable efforts to prevent the placement of the child [children] in foster care, because
the parent [parents] subjected the child [children] to aggravated circumstances.
[OPT] 10.
___________ presents a continuing danger to the child, and it is in the best
interest of the child that a protection order be entered. To adequately safeguard the
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child’s welfare, the protective order should [prohibit] [require] the following: ______
_____________________________________________________________________.
THEREFORE, IT IS HEREBY DECREED AS FOLLOWS:
1.
The child comes [children come] within the jurisdiction of the Child
Protective Act.
2.
Legal custody of the child [children] is vested in the Idaho Department of
Health and Welfare, for an indeterminate period not to exceed the child’s [each child’s]
eighteenth birthday.
[ALT] 2.
The child is [children are] placed under the protective supervision of the
Idaho Department of Health and Welfare in the child’s [children’s] own home, for an
indeterminate period not to exceed the child’s [each child’s] eighteenth birthday. [To
ensure the safety and welfare of the child/children, the child/children are placed at home
subject to the following conditions:___________________________________________
______________________________________________________________________.]
[OPT] 3.
The [father] [mother] [parents] will pay child support in the amount of
_____ per month. Payments will be due on the _____ of the month, with the first
payment due on _______________________, _______. The child support payments will
continue until the child reaches the age of eighteen (18) years or until otherwise ordered
by the court. All payments will be made in cashier’s check or money order and identified
by the number of this case and the name[s] of the [father] [mother] [parents]. All
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payments will be made payable to the Idaho Department of Health and Welfare, and
mailed to the Idaho Child Support Receipting, PO Box 7008, Boise, ID 83707-0108.
This support order is enforceable by income withholding under Chapter 12, Title 32,
Idaho Code. Whenever there is an arrearage equaling at least the support payment for
one (1) month, a mandatory income withholding order may be issued by the court to the
[father’s] [mother’s] [parents] employer or other person who pays the [father] [ mother] [
parents] income, without prior notice to the [father] [mother] [parents].
[OPT] 4.
The [^^^^^ County Deputy Prosecutor][Deputy Attorney General] and/or
the Idaho Department of Health and Welfare will take all reasonable steps to identify,
locate, and serve process up on the following persons: ________________________. If
service of process is completed, the petitioner shall file proof of service of process with
the court. If service of process is not completed, the steps to identify, locate, and serve
[the person][these persons] shall be documented in a written report to be filed with the
court prior to the next scheduled hearing. [Reasonable steps shall include, but not be
limited to, the following:
______________________________________________________________.]
[OPT] 5.
The petitioner and the Idaho Department of Health and Welfare shall take
all reasonable steps to determine whether the child is an Indian child [children are Indian
children], within the meaning of the Indian Child Welfare Act. If it is determined that the
child is an Indian child [children are Indian children], the petitioner will serve process in
accordance with the Indian Child Welfare Act and file proof of service with the court.
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The efforts to determine whether [the child is is an Indian child] [children are Indian
children] will be documented in a written report to be filed with the court prior to the next
scheduled hearing. [Reasonable steps shall include, but are not limited to, the following:
________
_________________________________________________________________.]
IT IS FURTHER ORDERED AS FOLLOWS:8
1.
The [case plan] [permanency] hearing is scheduled for [date, time, and
location.]
2.
IDHW will prepare a written [case plan] [permanency plan]. The
petitioner will file the plan with the court and serve copies of the plan on the parties at
least five days prior to the hearing.
3.
The plan will identify the current foster care placement for the child,
including a statement of why that placement is the least disruptive environment and most
family-like setting that meets the needs of the child. The plan will identify the services to
be provided to the child and the foster family, including services to identify and meet any
special medical, educational, emotional, physical, or developmental needs the child may
have, to assist the child in adjusting to the placement, or to ensure the stability of the
placement.
4.
The case plan will include a reunification plan.
a.
The reunification plan will include all issues that need to be
addressed before the child [children] can safely be returned home, without IDHW
supervision. Those issues include, but are not limited to, the following:
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____________________________________________________________________
____________________________________________________________________
b.
The reunification plan will specifically identify the tasks to be
completed by IDHW, each parent, or others to address each issue, including services to
be made available by the agency to the parents and in which the parents are required to
participate, and deadlines for completion of each task.
c.
The reunification plan will identify terms for visitation,
supervision of visitation, and child support, as appropriate. The plan shall provide for
sibling visitation where appropriate.
d.
5.
[Other]
[The case plan will include an alternative permanency plan.] The
permanency plan will:
a.
Address all options for permanent placement of the child
b.
Address the advantages and disadvantages of each option, in light
[children].
of the child’s [children’s] best interest.
c.
Include recommendations as to which option is in the child’s best
d.
Specifically identify the actions necessary to implement the
interest.
recommended option and deadlines for those actions.
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e.
Address options for maintaining the child’s [children’s] connection
to the community, including individuals with a significant relationship to the child and
organizations or community activities with whom the child has a significant connection.
f.
Identify further investigation necessary to identify and/or assess
other options for permanent placement, to identify actions necessary to implement the
recommended placement, or to identify options for maintaining the child’s significant
connections.
g.
6.
[Other]
IDHW will involve the parent [parents] and the guardian ad litem in
preparing the [case plan] [permanency plan]. The parent [parents] will cooperate with
IDHW in development of the [case plan] [permanency plan].
7.
IDHW will notify the child’s [children’s] foster parent [parents] of the
date, time, and location of the [planning] [permanency] hearing. Notice may be given by
any reasonable means, and as promptly as practicable, and in any event at least seven
days prior to the date of the hearing.
8.
[Protection Order]
9.9
[Other]
DATED this _____ day of ____________________, 20___.
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______________________________
Magistrate Judge
CERTIFICATE OF SERVICE
I certify that on the _____ day of _______________, 20_____, I served true and
accurate copies of the foregoing document on the following persons, either by deposit in
the U.S. Mail, addressed as follows and with the correct first-class postage affixed
thereto, or by deposit in the designated courthouse mailbox, or by fax to the number
indicated below, or by hand-delivery, as indicated below:
Name:
Served by:
[ ]
Hand-delivery
[ ]
Deposit in the designated courthouse mailbox
[ ]
By fax to: ____________________
[ ]
By deposit in the U.S. Mail addressed as follows:
Name:
Served by:
[ ]
Hand-delivery
[ ]
Deposit in the designated courthouse mailbox
[ ]
By fax to: ____________________
[ ]
By deposit in the U.S. Mail addressed as follows:
Name:
Served by:
[ ]
Hand-delivery
[ ]
Deposit in the designated courthouse mailbox
[ ]
By fax to: ____________________
[ ]
By deposit in the U.S. Mail addressed as follows:
Name:
Served by:
[ ]
Hand-delivery
[ ]
Deposit in the designated courthouse mailbox
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[ ]
[ ]
By fax to: ____________________
By deposit in the U.S. Mail addressed as follows:
____________________________
Deputy Clerk
Last updated September 21, 2007. Click http://www.isc.idaho.gov/childapx.htm for most current version.
1
The adjudicatory hearing is governed by Idaho Code §§16-1619 and by IJR 41. It is discussed in depth
in Chapter V of the Idaho Child Protection Manual.
2
This form can also be used for an amended disposition. Idaho Code §16-1623 sets forth the procedure
where a child was placed at home under the supervision of the department, the home situation deteriorates,
and an amended disposition to place the child in the custody of the department is sought. When using this
form for an amended disposition, findings 3-7 may be omitted (unless they need to be modified), but
findings 8 and 9 must be included (the written case-specific findings of best interest/contrary to the
welfare, and reasonable efforts to prevent removal).
3
If a parent, guardian, or other custodian fails to appear, the order should include findings that notice was
served on the person who failed to appear. If a parent (including a putative father), guardian, or other
legal custodian has not appeared and has not been served, the court should enter orders as necessary to
ensure that the missing parties are identified, located, and served as early as possible in the proceedings,
and that the court file contains documentation of service of process. Paternity testing may be necessary to
confirm that a putative father is a child’s biological father. The importance of finding and including all
parents whose rights have not been terminated, particularly in achieving permanency for the child, is
discussed in the Idaho Child Protection Manual at §V.D.2
4
IJR 38 sets forth the requirements for stipulations in child protection cases. The rule requires the court to
find that the parties entered the agreement knowingly and voluntarily, that the stipulation has a reasonable
basis in fact, and that the agreement is in the best interest of the child. The rule further requires that an
order based on the stipulation must include all case-specific findings required by state or federal law.
Therefore, in addition to optional finding 2, the court must make findings 8 and 9. The failure to make
findings 8 and 9 – even in the case of an agreement/stipulation – will jeopardize the child’s eligibility for
federal funding.
5
The court should determine whether the child is an Indian child within the meaning of the Indian Child
Welfare Act as early as possible in the proceedings. If the child is an Indian child, the court should ensure
that notice is given in accordance with the act as early as possible in the proceedings and further ensure that
the court file contains documentation of notice in accordance with the Act. The importance of compliance
with ICWA, particularly in achieving permanency for the child, is discussed throughout the Idaho Child
Protection Manual and specifically in Chapter XI of the Manual.
6
Regarding the “contrary to the welfare/best interest” finding:
Idaho Code § 16-1619(6) requires a detailed, written contrary to the welfare/best interest finding in a decree
vesting custody of the child in the department. Idaho Code § 16-1615(5)(d) & (e) require a contrary to the
welfare/best interest finding in an order placing the child in shelter care. Federal law requires that the court
make a written, case-specific finding that removal of the child is in the child’s best interest and that
remaining in the home is contrary to the welfare and of the child. This finding must be made in the first
order sanctioning removal of the child from the home. 45 C.F.R. § 1356.21 (c). Failure to make the
finding in the required manner at the required time will result in loss of the child’s eligibility for federal
IV-E funding, and the error cannot be corrected at a later date to restore the child’s eligibility for
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funding. Although unusual, it is possible for the decree to be the first order sanctioning removal of the
child from the home.
If the order is entered based on a stipulation, then the finding can be based on information documented in
the court record, such as the verified petition and supporting affidavit. If the matter is contested, the court
must make case-specific findings based on the evidence at the hearing, and those findings must be
documented in the order. The finding may not be a simple recitation of the language in the statute. (If the
court makes the case-specific finding orally on the record but fails to include it in the written order, then a
transcript of the proceedings is the ONLY way to meet the requirement for a written finding, although this
is a costly substitute for a written finding.) The contrary to the welfare/best interest requirement is
discussed in detail in the Idaho Child Protection Manual, §§ IV.E.1.b and IV.E.2.b.
In addition, the court should inquire regarding IDHW’s proposed placement for the child to ensure that it
will be the least disruptive placement available (the most family-like setting that meets the needs of the
child), in accordance with Idaho Code § 16-1629(11). This is a factor in determining whether it is in the
child’s best interest to vest legal custody in IDHW. The court does not, however, have authority to order a
specific placement for a child placed in IDHW custody. See Idaho Code §16-1629(8) and the Idaho Child
Protection Manual §§V.H.1.a.iii.
7
Regarding the “reasonable efforts to prevent removal” finding:
This finding is not necessary if the child has not been removed from the home and the decree does not
place the child in state custody.
If the child is removed from the home, Idaho Code § 16-1619(6) requires a detailed, written, reasonable
efforts to prevent removal finding in the decree. Federal law requires that the court make a written, casespecific finding that the state made reasonable efforts to prevent the need for removal of the child from the
home and therefore requires that this finding be made within 60 days after removal. 45 C.F.R. § 1356 (c) &
(d). Failure to make the required finding in the required manner within the required time will result in
loss of the child’s eligibility for federal IV-E funding, and the error cannot be corrected at a later date to
restore the child’s eligibility for funding.
If the order is entered based on a stipulation, then the finding can be based on information documented in
the court record, such as the verified petition and supporting affidavit. If the matter is contested, the court
must make case-specific findings based on the evidence at the hearing, and those findings must be
documented in the order. The finding may not be a simple recitation of the language in the statute. (If the
court makes the case-specific finding orally on the record but fails to include it in the written order, then a
transcript of the proceedings will meet the requirement for a written finding, although this is a costly
substitute for a written finding.) The reasonable efforts requirement is discussed in detail in the Idaho
Child Protection Manual §§ IV.E.1.b and IV.E.2.b. and V.H.
Regarding alternate sub-paragraph (b):
The only exception to the requirement for a “reasonable efforts to prevent removal” finding is where the
court finds that the parent(s) subjected the child to aggravated circumstances. Federal law contains no
exception for an emergency removal of the child parallel to Idaho Code § 16-1608, where reasonable
efforts to prevent removal were not possible due to imminent danger to the child; in those cases, in order to
comply with federal law, the decree should include the language in the alternate sub-paragraph (b). This
language, despite its awkwardness, has been painstakingly negotiated between the state and federal
authorities and complies with both state and federal requirements – it should not be altered or amended.
8
Regarding paragraphs 1 - 6 of the order:
If aggravated circumstances are found, the department must immediately prepare a permanency plan. If
aggravated circumstances are not found, and custody of the child is vested in the department, the
department must prepare a case plan that must include both a reunification plan and an alterative
permanency plan. If the child is placed at home under the department’s supervision, the department
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prepares a case plan that includes only the reunification plan. Idaho Code §§ 16-1620 & 16-16521 and IJR
41 & 44
The case plan must be filed within 60 days after the child is removed from the home or 30 days after the
adjudicatory hearing, whichever is first. The permanency plan must be filed within 30 days after the
finding of aggravated circumstances, which will usually be made at the adjudicatory hearing. The plan
must be filed at least five days prior to the hearing. Therefore, the hearing should generally be 35 days
after the adjudicatory hearing.
Paragraph 3 requires IDHW to identify the foster care placement. The court does not have the authority to
order a specific placement for a child placed in IDHW custody. See Idaho Code § 16-1629(11) and the
Idaho Child Protection Manual, §V.H.1.a.iii. There may be instances where the name and identity of the
specific foster family should be kept confidential for the safety of the child and the foster family. In such
instances, the plan should sufficiently identify the nature of the foster care placement to enable the court to
assess whether the placement is the least disruptive environment and most family-like setting for the child.
Placement issues are further discuss in the Manual at §§ VI.B.5 and VII.A.7.a.
The agency is required to consult with the parents and the GAL in preparing a case plan. Even if
aggravated circumstances were found, parental rights have not been terminated, and consultation with the
parents will likely be necessary to get information about potential family placements.
9
The order should include any other matters that need to be addressed to provide for the welfare of the
child, to promote resolution of the case, or to ensure that the parties are ready for the planning or
permanency hearing. For example:
___
Orders needed for examination, evaluation, or other services pending the planning or
permanency hearing
___
Orders needed for release of information (medical records, school records)
___
Orders for sibling visitation if siblings have been removed from the home and given
different placements
___
Orders required for paternity testing
___
Orders requiring a GAL report
___
Orders regarding other persons to be summoned for the case plan or permanency hearing
___
Orders for mediation
___
Transport orders (if parent is in jail or prison, if child is in detention or juvenile
corrections).
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