DFCS Online Policies & Procedures

  DFCS Online Policies & Procedures

   <<< Return to OPP Table of Contents
Handbook 13: Cross Program Protocols
13-17  Family Court- DFCS Protocol for Child Abuse or Neglect Referrals from Family Court
Cross Program Protocols
13-17  Family Court-DFCS Protocol for Child Abuse or Neglect Referrals from Family Court
Reference Points
Overview
Mandated Reporting Requirement
Family Court Makes a Child Abuse/Neglect Report
Family Court Requests a Child Sexual Abuse Investigation
Family Court Makes a Finding of Immediate Danger
Family Court Orders Law Enforcement to Place a Child in Temporary Custody
Family Court Orders the Parents to Request Voluntary Services from DFCS
Family Court Refers the Matter to Probate Court for Appointment of a Legal Guardian
Family Court Files an Affidavit Pursuant to WIC § 329 and 331
Investigation Summary Report Format
DFCS Referral to Family Court for Custody and/or Protective Services
Source Document
Other References


Reference Points
Effective Date: TBA
Last Updated: 3/23/11
 Legal Basis:
Popup Window Santa Clara County (SCC) Superior Court Rule of Court 3A and 3D
Popup Window Local Rule of Court 5 C
Popup Window Standing Court Order - 5/28/02 - Allowing Sharing of Written Documents among JPD, Probate Court, APD, FCS and DFCS
Popup Window Welfare and Institutions Code (WIC) § 300
Popup Window WIC § 304
Popup Window WIC  § 305
Popup Window WIC § 328, 329, 331 and 340
Popup Window WIC § 16506 and 16507
Popup Window AB 2228C
Popup Window Penal Code § 11165-11166
Popup Window Family Code § 3026 and 3027


Overview  

When a Family Court Judge or Family Court Services Investigator (FCS) believes that a child may be a person described by Welfare and Institutions Code (WIC) § 300 due to parental abuse or neglect, there are a number of options available for connecting the child and parents with the Department of Family and Children's Services (DFCS) for the provision of public child welfare services.  Additionally, there are situations where DFCS may have concern for the safety or protection of children where intervention by Family Court could prevent the necessity of juvenile dependency court intervention.

    < Return to OPP Table of Contents | ^ Back to Top of Page
   
Mandated Reporting Requirement   If during the pendency of a family law proceeding a child abuse allegation against one of the child’s parents comes to the attention of a Family Court Services staff member or other mediator or evaluator, that person must determine whether the allegation must be reported to a child protection agency pursuant to Penal Code Section 11166. If that person determines the allegation does not fall within the description of 11166, he/she need not make a report. However, any other person may report the allegation to a child protection agency.

    < Return to OPP Table of Contents | ^ Back to Top of Page
   
Sharing Information   The Department of Family and Children's Services and Family Court Services are authorized to share relevant oral and written information in accordance with Local Superior Court Rules and Standing Orders.
    < Return to OPP Table of Contents | ^ Back to Top of Page
   
Family Court Makes a Child Abuse/Neglect Report  

Upon determining that a child is being abused or neglected or at risk of being abuse or neglected, the Family Court judge or FCS:

  • Immediately telephones a child abuse report to the Child Abuse and Neglect Center or law enforcement agency.
    • Child Abuse and Neglect Center: (408) 299-2071
  • Sends in a written Suspected Child Abuse Report (SS8572) within 36 hours of the call.
  • Faxes copies of any existing custody, visitation or restraining orders to the CANC:  Fax: (408) 975-5851.

 

The Child Abuse and Neglect Center (CANC) social worker determines the response priority, which could be an Immediate Response (IR), a 10-Day Response, or no response at all (Welfare and Institutions Code [WIC] § 16504). 

Pending the outcome of the DFCS Emergency Response Investigation, FCS follows its usual procedures for handling the Family Court case, including conducting emergency screenings.  The Family Court judge makes any appropriate orders necessary to provide for the safety and custody of the child. Upon conclusion of the DFCS investigation, if a juvenile dependency petition is filed, the Family Court case and any further FCS involvement are stayed with regard to issues of custody and visitation, so long as juvenile court proceedings are ongoing.

If the judge determines that temporary placement with a non parent caretaker is necessary, pending the outcome of the referral to DFCS, the judge:

  • Joins the necessary party.
  • Makes necessary findings pursuant to Family Code § 3040-3041 to grant custody to the non parent based on the finding that allowing the child to remain in the custody of the custodial parent would be detrimental to the child and that granting custody to the non parent is required to serve the best interest of the child;
 
  • Orders that the child "reside temporarily with" the designated non parent caretaker (as opposed to awarding the non parent caretaker any form of legal custody); and
 
  • Grants the non parent caretaker the "temporary right" to make necessary health, education and welfare decisions for the child, pending the outcome of the referral investigation and further order of the court.
  • Sets a hearing date in Family Court within 40-60 days.
    • DFCS provides FCS with a letter of explanation and disposition of the investigation or other written summary.
      • DFCS and FCS may share oral and written information in accordance with local Superior Court Rules and Standing Orders.
    < Return to OPP Table of Contents | ^ Back to Top of Page
   
Family Court Requests a Child Sexual Abuse Investigation  

The Family Court Judge can request that the local child welfare agency:

  • Conduct an investigation of any allegations of child sexual abuse made during a child custody proceeding in Family Court and
  • Report its findings to the court pursuant to Family Code § 3027.
    • The social worker provides the Family Court judge with a summary report of the investigation within 10 business days, as the next Family Court Hearing is scheduled within 18 days from the request for investigation.
    < Return to OPP Table of Contents | ^ Back to Top of Page
   
Family Court Makes a Finding of Immediate Danger  

If the Family Court judge believes that the child's situation is grave enough to warrant an immediate response by child welfare services, and the judge is considering whether to order the child into temporary custody, the court may make a finding based upon the evidence presented that there is reason to believe that the child is a person described by WIC § 300 AND either:

  • (a) the child has an immediate need for medical care, or
  • (b) the child is in immediate danger of physical or sexual abuse, or
  • (c) the child's physical environment or the fact that the child is left unattended poses an immediate threat to the child's health or safety. (WIC § § 305, 340)

If the referral contains the above legal finding, the judge:

  • Completes a "Bench Referral to Activate Joint Response" form and provides the form to FCS.
    • FCS provides the form to the Sheriff's Security Screening Staff, which serves as a request that the Sheriff's Office activate a joint response with DFCS, using established joint response protocol.
  • Sets a further hearing in 18 days for FCS to report on the results of the DFCS investigation.

 

Emergency Response social worker:

  • Responds within 30 minutes to the joint response request.
  • Provides the Family Court judge with a summary report of the investigation within 10 business days of receiving the referral, as the next Family Court Hearing is scheduled within 18 days from the request for investigation.

 

    < Return to OPP Table of Contents | ^ Back to Top of Page
   
Family Court Orders Law Enforcement to Place a Child in Temporary Custody  

The Family Court Judge may exercise the court's inherent authority, under the doctrine of parens patriae, to order law enforcement to place a child in temporary custody and deliver the child to the Department of Family and Children's Services.  The court should only take this action upon making a finding, based upon evidence presented to the court, that there is reason to believe that the child is a person described by WIC § 300 AND either:

  • the child has an immediate need for medical care, or
  • the child is in immediate danger of physical or sexual abuse, or
  • the child's physical environment or the fact that the child is left unattended poses an immediate threat to the child's health or safety. (WIC § 305 and 340)

The judge should take the following steps:

  • Make the finding described above.
  • Order law enforcement to place the child in temporary custody and activate a joint response referral to the Child Abuse and Neglect Center, using established joint response protocol.
    • DFCS will respond within thirty mixtures.  Law enforcement should not transport children.
  • Provide law enforcement with a copy of the findings and order described above.
  • Set a date and time for a further hearing in Family Court within five days to receive a status report from DFCS describing what action was taken.
    • If the social worker files a § 300 petition in juvenile court, then further proceedings in Family Court regarding custody or visitation are stayed per WIC § 304.
      • The Dependent Intake (DI) social worker notifies Family Court Services (FCS) that a petition was filed.
    • If the social worker opts for a non-judicial intervention such as a Voluntary Family Maintenance services [WIC § 16506(b)], Voluntary Family Reunification services (WIC § 16507.3), or Informal Supervision services (WIC § 301), then Family Court maintains continuing jurisdiction over the child. 
      • The DI social worker provides FCS with a copy of any service agreement.
    • If a petition is filed but subsequently dismissed without the child's being made a dependent, the social worker shall notify FCS that the petition was dismissed. 
      • This allows the Family Court to resume jurisdiction over the case.

 

Upon receiving the child from law enforcement, the county child welfare agency must conduct an immediate investigation. (WIC § 328)  The social worker must release the child to the parent, unless one or more of the following conditions exist:

  • The child has no parent, guardian or responsible relative, or the child's parent, guardian, or responsible relative is not willing to provide care for the child.
  • Continued detention of the child is a matter of immediate and urgent necessity for the protection of the child and there are no reasonable means by which the child can be protected in his or her home or the home of a responsible relative.
  • There is substantial evidence that a parent, guardian or custodian of the child is likely to flee the jurisdiction of the court.
  • The child has left a placement in which he or she was placed by the juvenile court.
  • The parent or other person having lawful custody of the child voluntarily surrendered physical custody of the child pursuant to Section 1255.7 of the Health and Safety Code (Safely Surrendered Baby) and did not reclaim the child within the 14-day period specified in subdivision (e) of the section.
    < Return to OPP Table of Contents | ^ Back to Top of Page
   
Family Court Orders the Parents to Request Voluntary Services from DFCS  

The Family Court Judge, with the stipulation of the parties, can order the parents to seek voluntary child welfare services and cooperate with a child welfare services assessment of the family.  However, the Family Court is not authorized to order the county child welfare agency to provide Informal Supervision, Family Maintenance or Family Reunification services to a child or parent(s).  Only the Juvenile Court may order such services, once a petition is filed under WIC § 300.

Proposed Language for Order

The (father/mother/parents), having been informed of their right not to participate in voluntary child welfare services offered by the Santa Clara County Department of Family and Children's Services (DFCS), hereby agrees(s) to seek voluntary child welfare services and to cooperate with a DFCS assessment of the family.  The parents shall be responsible to follow through with any services deemed appropriate by DFCS.  DFCS and Family Court staff are authorized to share relevant written and verbal information in accordance with Local Rule 3.

Family Court Services:

  • Phones a referral to the Child Abuse and Neglect Center
  • Faxes to the CANC (975-5851):
    • the Suspected Child Abuse Report within 36 hours of making the report
    • The court order that the parents seek services
    • Any existing custody, visitation or restraining order

Upon receiving the referral:

  • The Screening social worker determines whether the response priority is an Immediate Response (IR) or 10-Day.
  • If assigned, an Emergency Response social worker:
    • Assesses both parents to determine:
      • Whether the child is in potential danger of abuse, neglect or exploitation.
      • What services are appropriate and available.
      • Whether the parents are willing to accept and participate in services to remedy the situation.
      • Whether it is safe for the child to remain in the home with the provision of services.  (WIC § 16506)
    • Provides Family Court Services with a summary report of the investigation, including explanations and recommendations.

Note: If a parent resides outside Santa Clara County, DFCS attempts to contact that parent by phone, but DFCS is precluded from conducting an investigation in another county.  DFCS may request courtesy assessments from other counties, but other counties are not obliged to respond.

 

The judge should include in the court order described above a further hearing date in Family Court 40-60 days from the date of the order for the parents to present a copy of the signed Voluntary Family Maintenance or Informal Supervision Agreement or proof that a community agency is involved with the family.

 

    < Return to OPP Table of Contents | ^ Back to Top of Page
   
Family Court Refers the Matter to Probate Court for Appointment of a Legal Guardian  

If the parents are unable or unwilling to provide proper care for the child and there is a caretaker willing to assume guardianship of the child, the judge or Family Court Services may refer the parents and caretaker to the appropriate resources at Probate Court to seek an order appointing a legal guardian for the child.

    < Return to OPP Table of Contents | ^ Back to Top of Page
   
Family Court Files an Affidavit Pursuant to WIC § 329 and 331  

If DFCS decides not to intervene or fails to report to the reporting party within 10 business days, the Family Court judge, Family Court Services (FCS) staff or any person may:

  • Submit an affidavit to the county child welfare agency pursuant to WIC § 329 requesting the commencement of dependency proceedings in juvenile court and

  • Fax a courtesy copy of the affidavit to the County Counsel Child Dependency Unit.
    • County Counsel fax:  (408) 491-4292

If the social worker fails to file a petition within three weeks after receiving the affidavit, then the applicant may:

  • Apply to the juvenile court to review the decision of the social worker per WIC § 331 and
  • Fax a courtesy copy to the County Counsel Child Dependency Unit.
    < Return to OPP Table of Contents | ^ Back to Top of Page
   
Investigation Summary Report Format  

When reporting back to Family Court after a referral investigation, the social worker completes a report that includes the following information:

  • Presenting Problem
    • Enter who has been referred and the ages of the children.
    • Summarize the reason given by the referent for the referral.
  • Prior Referrals
    • List the number of prior referrals.
    • List the date, allegation(s) and conclusion for each referral.
    • Include information about prior dependencies and the outcomes.
  • SART/MDI (if applicable)
    • If applicable, include details regarding Multi-Disciplinary Interview (MDI) and/or Sexual Abuse Report Team (SART) interview/examination and results.
    • If the referral includes an allegation of sexual abuse and an MDI or SART interview/exam were not conducted, explain why they were not necessary.
  • Findings
    • Enter a narrative describing the facts revealed by the investigation, including all of the problems identified by the referent and by the Emergency Response (ER) social worker. 
    • Include culturally significant factors that may be a family strength or may be necessary for the provision of services.
    • Include statements from collateral contacts.
  • Family Strengths
    • Describe the family's strengths which include:
      • Cultural and social support systems
      • Employment
      • Friends and family
      • Knowledge of or participation in community resources
      • Parenting skills
      • Problems solving skills
  • Risk to the Child
    • Identify the current risk to the child based on the findings of the investigation and any family strengths that may mitigate the problem(s) investigated. 
    • Identify future risk to the child, if no services intend to be offered or provided.
    • If the child is placed into temporary custody, include the child's name and age.
    • If there are siblings that remain in the home, describe the factors present that explain how the other children are not at the same level of risk as the child removed.
  • Conclusion
    • Summarize the allegations and the disposition of the allegations.
    • List any referrals or services that were offered or provided and to whom they were offered or provided.
    • Include information regarding refused offers of services.
    • List specific recommended services, linking those services to the identified problem.
    • Describe to the Family Court relevant custody and/or visitation arrangement that will best ensure the continued safety of the child.
     
    < Return to OPP Table of Contents | ^ Back to Top of Page
   
DFCS Referral to Family Court for Custody and/or Protective Orders  

When DFCS investigates a referral for child abuse or neglect and finds that there is an ongoing Family Court case where the issues presented in the referral could be resolved or determines Family Court orders could ameliorate the risk to the child, DFCS refers the case to Family Court for expedited handling.

  • If there is an ongoing Family Court case where the parent seeking custody or change of custody is represented by counsel, then counsel should seek a temporary custody order in Family Court by using the ex parte procedure specified in Local Rule of Court 5.C.
  • if the parents are unrepresented in the Family court case or no Family Court case is open, DFCS completes and provides the parent seeking custody or a change of custody with a Referral Form to Santa Clara county Self Service Center/Family law Facilitators Office.
  • The referral form includes a deadline by which the parent must present the referral form to one of the Self Service Centers located at the Notre Dame Courthouse or the South County Courthouse.  Holders of a DFCS Referral Form are allowed to go to the front of the line.  A copy of the referral form should be attached to the paperwork filed by the parent in Family Court.
  • DFCS and FCS share oral and written information in accordance with local Superior Court Rules and Standing Orders.  this includes FCS advising DFCS what orders, if any, are made by Family court which may prevent the necessity for juvenile court intervention.
    < Return to OPP Table of Contents | ^ Back to Top of Page
   
Source Document   Protocol for Family Court, Juvenile Court, and the Department of Family and Children's Services in Cases of Child Maltreatment
    < Return to OPP Table of Contents | ^ Back to Top of Page
   
Other References  
bullet2 OPP Chapter 13-10: Safely Surrendered Baby Protocol
    < Return to OPP Table of Contents | ^ Back to Top of Page