72 Hour Hearings: The First Court Hearing After Removal of a Child by CPS

72 Hour Hearings: The First Court Hearing After Removal of a Child by CPS

            In Washington State, when a child is removed from the home by CPS, by law there must be a court hearing within 72 hours (excluding weekends and holidays) known as a 72 Hour Shelter Care Hearing. CPS is required by law to make reasonable efforts to inform the parents that their child was removed, the reasons why, the date/time/location of the hearing, and their rights at this hearing. A parent’s rights at this hearing include (1) the right to have an attorney represent them, the right to speak on their own behalf, the right to introduce evidence, the right to examine witnesses, and the right to receive a decision based solely on the evidence presented to the judge. They also can contest all things that CPS is requesting, including the need for ongoing out-of-home care pending the dependency trial (this out-of-home care, if ordered by the court at this hearing, is known as “shelter care”). If a parent does not show up, and CPS through testimony proves to the court that reasonable efforts were made to provide them notice, the parent will be “defaulted,” meaning the court will find “shelter care” as to that parent without them being able to exercise their hearing rights.

            The rulings at this hearing are only temporary, with the court’s primary goal a determination on whether the child or children can safely return home pending the resolution of the dependency trial. This hearing does not determine whether the specific allegations in the dependency petition are true or false. That happens at trial. Unfortunately for parents, the burdens of proof and standards for evidence are much lower at a 72 Hour Hearing than a civil or criminal trial (and in turn, the civil dependency trial has much lower burdens of proof than a criminal trial). For the court to find “shelter care,” it generally must only find that there is reasonable cause to believe the child or children can’t safely go home to a parent that day. “Reasonable cause” gives the court broad discretion in making this decision. Additionally, the usual rules of evidence do not apply at this stage – the court only reviews evidence under a “reasonable cause” standard, which, while not clearly defined, allows a lot more evidence to come in that otherwise a parent may be able to object to at a full trial. These relaxed standards, which are arguably quite “anti-parent” at this stage, are because a child’s safety trumps a parent’s fundamental parental rights when the two conflict in the eyes of the court. This unfortunately means that the strong majority of these hearings result in the court finding “shelter care” and ordering that the child or children be in relative, suitable adult, or foster care placement pending the dependency trial. It also means that a parent generally must have a strong case and aggressive representation at this stage to have their child returned home to them that day.

       If you have questions about a dependency case, email us at eliseb@elisebuiefamilylaw.com or call at 206-926-9848 to schedule a consultation. Please note, however, that if you are currently represented by another attorney, we may not be able to speak with you about your case.


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