This document provides guidance on answering common questions related to child welfare cases involving the Department of Human Services (DHS). It summarizes the court process following DHS taking a child, including shelter hearings, pretrial conferences, and permanency hearings. It also discusses options for grandparents, such as guardianship, third-party custody, reporting to DHS, and becoming foster parents. The document stresses cooperating with DHS investigations, asserting 5th amendment rights only in severe cases, and noting that many cases are screened out with no further action or safety plans allow children to remain home.

1. H O W T O A N S W E R
T H E M O S T C O M M O N Q U E S T I O N S
P r e s e n t a t i o n f o r K i v e l & H o w a r d , A u g u s t 2 0 1 3
Child Welfare Calls
to LegalShield

2. DHS “just wants to talk”
 Trickier than advice in criminal cases, where you
would advise “Don’t talk!”
 Part of safety assessment is determining caregiver’s
“protective capacity.” Cooperating with DHS factors
into “protective capacity” determination.
 But assert 5th Amendment silence if alleged sex
abuse, physical abuse or severe neglect (medical,
starvation).
 DHS required to try to work with parents before
removing kids.

3. What to tell parents if DHS “wants to talk”
 Many cases screened out
at investigation with no
further action.
 Where possible, DHS is
required to create “safety
plan” for child to stay in
home.
 Usually not whole story if
child pulled out of home
for “no reason.”

4. DHS
took
my
child

5. Quick Walk through Court Process
 Shelter Hearing – 24 judicial hours
 Pretrial Conference – 30 days (admit/deny)
 “Trial” (judge - no jury) – 60 days (jurisdiction
& disposition)
 Citizen Review Board – 180 days
 Permanency Hearing – 12 months (safe to
return?)
 Termination? – 15 of 22 months in foster care

6. Shelter Hearing - ORS 419B.180
 Review reasons for
removal – Petition with
Affidavit
 Probable cause?
 Standard of proof =
“Preponderance of
evidence”
 Placement? Return
unlikely!
 Court appointed attorney
 Grandparents can attend

7. What to Tell Parents
 Will find out basic
information at court &
more in about 1 month.
 Court will appoint an
attorney.
 No LegalShield trial
defense coverage –
“domestic related” & also
not a trial.
 DHS required to work with
parents to help kids go
home. 64.1% reunified.

8. What to Tell
Concerned Grandparents
Guardianship?
Third-Party
Custody?
Report to DHS?

9. Probate Guardianship Third-Party Custody
 ORS 125
 Focuses more on need of
child for protection than
who does protecting
 “Visitor” may investigate
 Easier to change
guardian
 Annual report to court
 ORS 109.119 also applies
 ORS 109.119
 Focuses more on
relationship: “Parent-
child” or ongoing
personal within 6
months before filing.
 Harder to change
custody
 Custody or visitation
Non-DHS Options

10. DHS Took My Grandchildren
 Attend court – best
source of information
 Make written request
to DHS for hearing
notice – send by
certified mail
 DHS must consider
relatives for placement
 Early involvement key!
 Need to retain attorney
if want to intervene

11. DHS
Won’t
Do
Anything
•• May be working
with family
•• Continue to
report
•• Reporting
doesn’t always
mean removal

12. Grandparents as Foster Parents
 Placement ≠ Custody
 Foster care means LOTS of rules
 Judge can’t direct placement*
 Almost impossible to get back
child if “decertified” as foster
home
 CANS (Child and Adolescent
Needs and Strengths)
Assessment determines foster
care rates
 Work with child’s attorney &/or
CASA
 Harder for immediate placement
if live out of state (ICPC)

13. What to Tell
Foster Parents
• Long-term
preference is for
relatives
• Current caretaker
preference requires 12
months consecutive
in foster home
• Involuntary
termination of
parental rights seems
harder these days
• Need to retain
attorney if want
limited participation/
intervenor status

14. Indian Child Welfare Act Considerations
 Standard of proof = clear
and convincing evidence
(25 USC § 1912(e))
 Applies if child tribal
member or eligible for
membership & parent is
member
 Tribe is a party
 “Active efforts” required to
reunify
 Guardianship preferred to
adoption
 No LegalShield referral to
tribal court

15. ICWA Means Additional Resources
Don’t ask – make it
a statement:
“If you have Native
American heritage,
additional
resources may be
available to help
your family.”
Blood
quantum/tribal
membership isn’t
always necessary.
Tribal court is “real
court.”

16. Court Appointed Special Advocates
ORS 419A.170
governs
CASA roles:
• Investigate
• Advocate
• Facilitate &
Negotiate
• Monitor
Legal party in
juvenile
dependency
Not enough for
every case

17. Questions?

18. Resources
 Juvenile Court Improvement Project (JCIP)
Benchbook
http://www.ojd.state.or.us/JuvenileBenchBook.nsf
 DHS Child Welfare Procedure Manual
https://www.dhs.state.or.us/caf/safety_model/proc
edure_manual/index.html
 Oregon’s Legal Guide for Grandparents and Other
Relatives Raising Children
http://extension.oregonstate.edu/fch/sites/default/f
iles/documents/legal_rapp_09.pdf