What happens when a child enters protective custody

Monday, Dec. 1, 1997 | 10:33 a.m.

After a child is taken into protective custody, a Clark County Family Court hearing must be held within 72 hours, excluding weekends and holidays.

If the judge determines the child should not return home, authorities have up to 10 additional days to file a petition seeking continued protection or recommending other action such as counseling for the parents.

Most times, a case doesn't get this far.

In a majority of cases where petitions are filed, the parents agree to the abuse/neglect allegations and follow the recommendations made by Clark County Family & Youth Services, which may include counseling, employment or substance abuse treatment.

The case is then closed.

If the parents fight the protective custody petition, an adjudicatory hearing must be held within 30 days. The juvenile judge hears sexual abuse complaints, and one of three referees presides in physical abuse and neglect cases.

The child will become a ward of the court if there is a finding of abuse or neglect based on "a preponderance of evidence." Unlike a criminal case, guilt does not have to be proven beyond a reasonable doubt. However, evidence gleaned in Juvenile Court can be used against a parent in criminal proceedings.

"The family takes a dip, especially when kids are taken out of the home," Family Court Judge Terrance Marren says. "Unfortunately, some cannot make it back up. It's the unknown about how long this will last, and whether it will last forever. Does it cause a fall back to bad behaviors? Yes."

Because of privacy laws, the hearings are closed; case files are not public.

That frustrates those critical of Family Court decisions. It also stymies judges who take the heat for those decisions but cannot publicly talk about specific cases.

And there is plenty of rancor over the fairness of the hearings. As a SUN series on Family Court last January pointed out, rulings are inconsistent because judges have different perspectives, demeanors and standards.

Family Court Judge Gerald Hardcastle concedes there is reason for concern about consistency.

"I do things and have my standards for (parent) reunification but another judge may change that," he said. "Some judges really are aggressive at getting kids through the system, either through adoption or back home, while others are not as aggressive."

Part of the problem, Hardcastle says, is that juvenile judges keep changing. He was juvenile judge from 1994 to 1996. Marren took over this year assuming he'd serve for three years. But because of political infighting among the eight Family Court judges, Hardcastle will retake the position in 1998.

"There has been friction between the judges, and it was a political decision. I don't think it was based on my performance as a juvenile judge," says Marren, who recently was reprimanded by the Judicial Discipline Commission for undue delays in other Family Court cases.

"We've been thinking about whether the Juvenile Court judge should be separately elected (instead of appointed by the other Family Court judges). That would guarantee continuity. We can't let the families of Clark County rest on the whims of this court."

Las Vegas attorney James Guesman says that because the four-year-old Family Court is still evolving, judges are flexing their muscles "to see who has more power."

That rankles Las Vegas attorney Robert Glennon and his paralegal wife, Liz, who have helped several parents regain their children. They say fighting for parental rights is an uphill battle heavily stacked in the government's favor.

"The social workers appear to have too much authority, and the courts give them that authority," Glennon says. "Once a kid is committed to foster care, it's very hard to get them out."

Among his concerns:

* Many parents aren't represented by attorneys.

* Standards such as "clear and present danger," used by authorities to remove children from homes, and "preponderance of evidence," used in civil proceedings to determine abuse or neglect, are too broadly interpreted.

* Caseworkers are insufficiently trained to conduct unbiased interviews with children.

"Too many kids are taken from parents because they knew dirty words and the parents didn't get jobs," Glennon says. "I don't think the courts are getting to the truth because they don't have normal evidentiary standards."

Guesman says one gray area is when parents are accused of "environmental" neglect.

"Just because a place is dirty doesn't mean it's hazardous to a child," he says.

Timothy O'Brien, the county's chief deputy district attorney in the juvenile division, says he would like the ability to admit a child's statement of neglect or abuse without forcing the child to appear in court.

"It's a more humane way to do it," O'Brien says.

He's also not sold on the idea that all parents need attorneys.

"I have no idea how much weight the word of any attorney would have on these people," he says. "Would it sometimes help them understand the case plan? Yes. Would it change dispositions? Not really. For the vast bulk of cases you have an idea of what the dispositions will be from the beginning."

O'Brien says many parents don't even bother to appear for scheduled hearings so "an attorney being there for them will have little impact."

A judge may appoint an attorney for indigent parents but isn't required to do so under state law. However, the federal Indian Child Welfare Act requires judges to appoint attorneys for indigent Native American parents.

Marren believes more parents need attorneys.

"In plain English, the attorney would explain the things you need to get your child back," the judge says. "I have authority to appoint counsel, but sometimes that authority is not clear. I always feel comfortable when people have counsel with them."

Family Court Judge Gerald Hardcastle agrees. The major roadblock is lack of funding. Priorities are given to parents who can't defend themselves because of mental problems, don't speak English or face sexual abuse allegations.

"A majority of the parents are low-income," Hardcastle says. "Poverty leads to these type of things. If you can't afford day care and have to lock your kid inside your house when you work, police may consider that abuse or neglect."

There aren't enough attorneys in Las Vegas who understand the child protective system, Guesman says.

"In some circumstances, having the wrong attorney can do more harm than hiring no attorney," he says.

Once a child is a ward of the court, he or she can still be returned to the parents but under continued caseworker supervision. Other options include placing the child with a guardian such as a relative or in a foster home.

Many relatives, such as grandparents living on Social Security and/or a small pension, who want to become guardians cannot afford attorney fees, which can run upwards of $1,000. Meanwhile, the child remains in foster care for months, sometimes longer.

This is a sore subject with Las Vegas attorney Ishi Kunin, who used to do guardianships at no charge. She says she stopped due to pressure by the Clark County Bar Association, which runs its own guardianship program.

"It makes them look good if they do all these pro bono legal guardianships," she says.

Guesman says the bar association is in the process of expanding its program.

As in other areas of the court, guardianship cases are skyrocketing. Jennifer Henry, the court's guardianship commissioner, says her caseload has nearly doubled to 40 to 55 a week in just a year. Since 1980, the county has handled 18,000 guardianships; 6,500 remain open cases.

If the child remains outside the home, his status must be reviewed by the court at least every six months. Children can be returned home at any time if the court is satisfied the parents have followed the case plan.

A successful court innovation is the Foster Care Review Board, created in 1995 to determine options for difficult-to-place children. Headed by the juvenile judge, the board includes county and state child protective agency representatives, court-appointed special advocates and members of the public.

"The intent was to make sure none of these kids fell through the cracks," says Brenda Dizon, who runs The Shade Tree shelter for women and children. "Kids need to know they can go to a place they can trust. Every time you move a child to a new place, that bonding and trust starts all over again."

Last month the court began permitting authorities to initiate termination of parental rights within a year -- rather than the 18-month maximum stipulated by federal law -- after the child is placed in protective custody.

Once parental rights are terminated, a child is eligible for adoption.

Nevada has one of the highest adoption rates in the nation. The National Center for Policy Analysis reported that Nevada's adoption rate of 48.46 percent among all children eligible in 1996 ranked fifth among 41 states that released their data.

Kunin, who handles adoptions, says there's an up-to-seven-year waiting list to adopt healthy babies.

The hard-to-place children are minorities 2 and older, which reflects a national problem. Kunin says she has had to place about a dozen minority babies in Canada.

archive