Lawyers Manual - Unified Court System

Representing Domestic Violence Victims in Child Welfare Cases 87
understand the pitfalls of this course of action, particularly the potential for
removal of her children should another incident of violence occurs. An attorney
for a mother in that situation should encourage her to develop a well thought-out
safety plan that she can share with the CPS caseworker and to pursue an order
of protection which, while allowing the parties to continue to live together,
restrains the abuser from verbal or physical abuse against her and the child.
An attorney may also provide information to, or advocate directly with,
CPS as long as there is no pending Family Court case. The attorney should ask
whether the caseworker intends to file in court or seek removal, so that the
attorney may be present if such a filing occurs and may request a hearing before
a removal. If the attorney believes that removal or any other legal action is
forthcoming, the attorney may ask the caseworker to provide contact information
for a CPS attorney. The mother’s attorney also may contact the CPS legal services
unit directly. If removal or court action appears imminent, the attorney should
notify the CPS legal services unit in writing that the attorney represents the
mother and must be informed of any court filings.
Procedural and Substantive Requirements for Removal
The removal of a child from a parent is one of the most serious exercises
of government power that our constitution permits. The Court of Appeals
recognizes that “the liberty of a parent to supervise and rear a child” is one of
the “[f]undamental constitutional principles of due process and protected
privacy. . . .” 19 The Court also recognizes that it is in a child’s interest to be
raised by his/her parent, and that relationship should not be interfered with
absent grievous cause or necessity. 20 Thus, exacting procedural safeguards are
applied when the government seeks removal.
The law requires CPS to obtain a court order authorizing removal of a child.
The only exception is when CPS determines that there is an imminent danger of
serious injury to the children’s life or health and the risk of harm is so immediate
that there is no time to obtain a court order. 21 The court must then hold a hearing
prior to continuing the removal made without court order. 22 CPS also may file
ex parte but must give the mother notice of its intention to do so and, again, a
hearing must be held. Upon any application for removal, the court must determine
whether reasonable efforts were made to eliminate the need for removal or, if
such efforts were not made, whether the lack of such efforts was appropriate
under the circumstances and whether an order of protection would ameliorate
the danger. 23 At the conclusion of the hearing, the court may decline to order