Permanency and the Courts
At Fostering Change: Alliance for NH Foster Parents we support the birth parents’ ability to grow, learn and provide a happy and healthy home for their family in order to reunify with their children. We believe in timely permanency, as indicated in ASFA is essential for all children and adolescents in foster care and in 2018 were successful in our efforts to pass the 1st law specific for foster parent rights in the state of NH. Most of all we believe that working together and with other organizations we can more effectively advocate for what our foster children need to have the most successful futures.
We recognize that foster care is temporary care and that the goal is not to take children away from their parents permanently, it is to support the family unit with the hopes that children can return home to their parent's care.
To better understand permanency and the courts it's important to learn more about the overall court process for children in foster care. For additional information, DCYF recommends that licensed foster parents go to the NH Judicial Branch Circuit Court Family Division website: https://www.courts.state.nh.us/fdpp/abuse_neglect.htm
To read: A Basic overview of Abuse and Neglect Law, click HERE.
The court experience can be intimidating or overwhelming. This factsheet from the Child Welfare Gateway and the Children's Bureau is designed to answer parent and caregiver concerns about the court process and provide resources regarding legal action and parental rights. To read: Understanding Child Welfare and the Courts, click HERE.
According to NH state law 170-C:E(52)VI. and pursuant to RSA 169-C:14, the foster parent shall receive notice of all court proceedings, may submit written reports, and, at the court's discretion, may attend such hearings and provide oral reports of the child's behavior, progress, and developmental, educational, and healthcare needs. For more information for writing a court report, click HERE.
Juvenile Abuse/Neglect 24 Hour/Emergency Protective Hearing
When a child is believed to be abused or neglected a 24-hour protective/emergency hearing takes place where the Juvenile Abuse/Neglect Ex-Parte Order and court report will indicate the finding(s) that has led DCYF and the judge to believe that the child(ren) is(are) in such circumstances or surroundings as would present an imminent danger to the child(ren's) health or life, which require the immediate placement of the child(ren). It's at this point that the judge can order that DCYF is awarded protective supervision of the child(ren) and an out of home placement is determined in the child(ren's) best interest. This is how a child legally transitions to your foster home. A petition must be filed, pursuant to RSA 169-C:6-a, IV within 72 hours of this order, Sundays and holidays excluded. See also: 169-C: 6(a)(b),7,8,9.
State law now requires a court order for an out-of-home placement under the child protection act to include written findings regarding the need for the placement. See HB 349-FN (June 2017, effective January 1, 2018).
Federal law requires that the court make, (1) a determination that a child who remains in his/her home and receives preventative services is at "imminent risk of removal" absent such services. This determination is required every six months, and (2) a "reasonable efforts" determination within 60 days of a child's removal from the home. If the determination is not made, the child will be ineligible for the Title IV-E foster care maintenance payments for his/her entire stay in foster care.
For more information about the appointment of a foster child's CASA/GAL and their role in court hearings see: RSA 169-C10,10(a).
Preliminary Hearing (Foster parents are NOT invited to attend)
The judge decided at the previous hearing that there was reasonable cause to believe that your foster child's circumstances or surroundings presented an immediate danger to his/her health or life. A preliminary hearing is held because the child was removed from his/her home, so now the judge must determine whether or not the child was in fact in immediate danger. This is when a parent can challenge the petition. If a determination is made and the petition for abuse/neglect is accepted and not dismissed then an Adjudicatory Hearing will be ordered and scheduled. Between the Preliminary Hearing and the Adjudication Hearing, the parent should receive documents from DCYF, called discovery. These documents should encompass all of the material DCYF has on the family, which may be produced as evidence at a trial, or Adjudication. See RSA 169-C: 15,16.
Adjudicatory/Fact-Finding Hearing (Foster parents are NOT invited to attend)
At the adjudicatory hearing the judge will listen to evidence from parents, their attorneys and DCYF. This is where DCYF must present evidence and prove by a preponderance of the evidence that the abuse or neglect occurred, as stated in the petition. If the judge concludes that your foster child has not been abused and/or neglected, the judge will dismiss the petition and the child will return home. If the judge determines that your foster child has been abused or neglected, a written finding of "True" will be entered and a dispositional hearing will be scheduled. Birth-parents may choose not to have an adjudicatory hearing by waiving his/her rights and filing a consent agreement with the Court. If the judge approves this Consent Decree, and it includes a finding of "True," it will have the same force and effect as if the judge had entered a finding of "True" and determined at an adjudicatory hearing that your foster child has been abused and/or neglected. If a finding is made the parent's name will be listed in a Central Registry for the State of New Hampshire for seven years, which may impact employment. It is not a public registry, but does impact those in child care, education, and medical fields. See RSA 169-C: 17,18.
When the fact-finding is "true," the birth-parent will now have approximately 12-months from the date of the finding to correct the conditions that led to the findings. Click on the timelines to view more information: Timeline 1, Timeline 2, Timeline Overview.
Dispositional Hearing (Foster parents may attend)
The judge will hold a Dispositional Hearing within 30-days of the Adjudicatory Hearing/Fact Findings to review the social study of your foster child's birth family, consider recommendations from parties to the case and approve a case plan and visitation plan that will outline what a birth parent must do to correct the conditions of the abuse and/or neglect. A birth parent may appeal the court's decision, but must do so within 30-days of the final Dispositional Order. It is customary for everyone to go around the room and say their name and role at the hearing. When it is your turn, stand and state your name and identify yourself as the foster parent. If you want to provide the court with a letter or brief report to present information to the judge about the status of the child in your care, you must submit it ahead of time. Click HERE to learn more about foster parent court reports. See: RSA 169-C: 19,22.
In a court report you may discuss:
visits and/or connection between the birth parents and the child,
visits and connections with siblings and extended family,
educational and social issues,
medical and/or mental health considerations concerning the child,
information that in your opinion affects the health, safety or well-being of your foster child, and/or,
any other comments or concerns that do not advance a particular position (reunification or termination of parental rights)
NH DCYF Resource Guide to Assist Families with Foster Care, Adoption and Permanency Supports, (pp. 14-15). Cross-posted from NH District Court Improvement Project Protocols Relative to Abuse and Neglect Cases and Permanency Planning: https://www.courts.state.nh.us/district/protocols/abuseneglect/abusenegprotocol.htm & http://www.gencourt.state.nh.us/rsa/html/xii/169-c/169-c-mrg.htm
Review Hearings (Foster parents should attend)
Every 3-6 months periodic review hearings are held to determine the status of the case, examine the case plan progress and whether reasonable efforts are being made toward reunification. The court will continuously assess whether your foster child can return to his/her birth home safely and establish a reunification timetable if relevant, and set the date for the next hearing if needed. Birth parents must successfully complete the case plan before they are allowed to regain custody of their child. See: RSA 169-C: 24.
As a foster parent you may be acknowledged by the judge and thanked for the care you are providing to your foster child. Introductions are not the time to bring up any of your concerns. If the judge acknowledges you, stand up to address him/her and if he/she asks if you have anything to add always address the court with respect and identify the judge as "Your Honor." Do not expect the judge to mention your report or letter. You may take notes but you are not allowed to record a family court hearing. Do not chew gum in court and do not bring in any food or drinks. Turn off the sound on your cell phone before you enter the court room and do not use your phone while court is in session or you will be asked to leave. Proper court conduct is expected of foster parents. Click HERE to learn more about NH Court Rules for each judicial branch, such as the Family Division of the Circuit Court. To find out information about a specific circuit court, click HERE.
It is rare that a foster parent is given more than a moment or so to speak in court. Only you and your spouse/partner as foster parent(s) will be allowed into court. If you want to bring a foster child's teacher, therapist or pediatrician he/she will need to get permission from the judge through the court clerk. Prior to entering the courtroom ask to speak to the clerk. Remember you are not a party to the case, so bringing a special guest might in fact be frowned upon by the court, as well as DCYF representatives and the CASA/GAL. It may be more appropriate to ask the person who has relevant concerns to mail a letter directly to the court two weeks prior to the hearing. Click HERE to see how someone like this should address the court in writing.
Most NH family court judges are not in favor of young children coming into the courtroom, despite the 2012 finalized Protocols Relative to Children and Youth in Court RSA-169-C Child Protection Cases for Use in the NH Circuit Courts.
Info from: National Council of Juvenile and Family Court Judges (NCJFCJ), with support from the New Hampshire Court Improvement Project (CIP), Protocols Relative to Children and Youth in Court RSA-169-C Child Protection Cases for Use in the NH Circuit Courts (2008, 2011 & finalized 2012). Retrieved from: https://www.courts.state.nh.us/fdpp/Protocols-Child-Protection-Cases.pdf
For more information about the role of foster parents in the court process, refer to the NH DCYF Resource Guide to Assist Families with Foster Care, Adoption and Permanency Supports page 14.
Permanency Hearing (Foster parents should attend) See 169-C:24(b)
The most important of these review hearings is the Permanency or 12 month Review Hearing. At this hearing the Court will decide whether the parent is compliance with the case plan and orders, and if not, may order DCYF to Petition the Court to terminate the parent's rights, obtain guardianship themselves or with a fit and willing relative, or with older children, keep them in long term foster care or group home placement. Retrieved from: https://www.avvo.com/legal-guides/ugc/a-basic-overview-of-abuse-and-neglect-law-in-nh
The DCYF 1570 PERMANENCY HEARING POLICY states: IX. The court will notify the parents, foster parents, prospective adoptive parents, and relatives providing care, of the hearing’s date and will inform them that they will be able to discuss the
permanency goal for the child/youth at the hearing. (September 2015)
Post-Permanency Hearings (Foster parents may attend) See 169-C:24(c)
If a child is still in your care post-permanency you may be allowed to attend some of the post-permanency hearings. If the court has scheduled one or more termination of rights hearings (TPR), a foster parent will not allowed to attend unless specifically invited by a party to the case, usually as a witness.
Termination of Rights Hearing (TPR) (Foster parents must be invited to attend) See 170-C
The purpose of this hearing is to determine whether or not the termination of the parent-child relationship by a judicial process will safeguard the rights and interests of all parties concerned in the best interest of the child. A foster parent is not generally invited to attend this hearing unless they are called as a witness or became a party to the case when they themselves have filed for TPR- see below. If you file for TPR you should strongly consider retaining your own attorney. (170-C:1)
Can foster parents in NH file for TPR?
Yes, but only under specific circumstances. A petition for termination of the parent-child relationship may be filed by the following:
I. Either parent when termination of the parent-child relationship is sought with respect to the other parent.
II. The guardian of the person or the legal custodian of the child or the foster parents.
Foster parents may file only when the following conditions are met:
(a) The child has lived in the foster home continuously for 24 months; and
(b) The foster parents have requested in writing the licensed child-placing agency to legally free the child for adoption, but that the agency has not initiated proceedings, and there is reasonable cause to believe that grounds exist.
III. An authorized agency. (170-C:4)
To view a timeline of the TPR process in NH click HERE & scroll to page #8.
Revised (1A-11) April 2003 & (15-18 ) January 2018, these Protocols suggest an interpretation of the law. To read the Protocols click HERE. To read the newly revised Chapters 15-18 (1/1/18) click HERE.
PROTOCOLS RELATIVE TO CHILDREN & YOUTH IN COURT - RSA 169-C CHILD PROTECTION CASES FOR USE IN THE NH CIRCUIT COURTS ~ Developed by the Franklin and Concord Model Court Project in Cooperation with the NH Court Improvement Project.
The 2012 Children and Youth in Court Protocols do not create substantive rights that do not currently exist and should not be considered as superseding any constitutional or statutory rights of parties to proceedings related to abuse and neglect.
To watch the 10 minute video about Protocols Relative to TPR, Surrender, Voluntary Mediation & Adoptions Involving RSA 169-C Cases, click HERE.
Protocols Relative to RSA 169-C Post Permanency Hearings for Older Youth with a Permanency Plan of Another Planned Permanent Living Arrangement (APPLA) for Use in the New Hampshire Circuit Courts, October 2015
Preparing Children for Court
- Activity book- recommended for children 6-9 years old: What's Happening in Court
- Preparing for NH Family Court- A video for children and teens: Click to watch: "Court... I'm Going"
- Video: Kids in Court
- Video: What to Expect in Court
- Video: Getting Ready for Court
- Video: Participating in Court
- Comprehensive Article by Fostering Perspectives: Supporting Young People When it is Time for Court
- Judicial Guide that has information about ways to talk with children about the court process in age-appropriate ways, divided by ages 5-11 years, 12-15 years and 16 and up: Tools for Engaging Children in Court Proceedings
- Guidebook for children 8 years old and up: Hearing Your Voice- A Guide to Your Dependency Case
- Age appropriate information benchcards put out by The American Bar Association Center on Children and the Law Bar-Youth Empowerment Project
NEW! The ABA Center on Child and Law is promoting the National Council of Juvenile & Family Court Judges: ENHANCED RESOURCE GUIDELINES shaping court innovations around the country. Click HERE to read the guidelines and learn more about how the court process works for abuse/neglect cases and how judges must consider a young child 's social-emotional development when making decisions.
DCYF in NH utilizes "concurrent planning" in their case plans. For more information on Concurrent Planning for Permanency for Children, click HERE.
Permanency, Foster Parents and the Law: Legal Resource Manual for Foster Parents
The two manuals above are a bit dated but still very informative. Please see disclaimer: This curriculum was developed by the National Foster Parent Association, is based on the Legal Resource Manual for Foster Parents, authored by Cecilia Fiermonte, J.D., American Bar Association Center on Children and the Law and Regina Deihl, J.D., Legal Advocates for Permanent Parenting. The information in the manual and this curriculum is based on laws in effect in September, 2004. Participants should be advised that federal and state laws can change at any time. This information is not a substitute for legal advice or counsel. For questions related to specific cases, participants should contact an attorney in their state with experience in child abuse and neglect cases.