Lower standards of evidence used for abuse

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	Introduction

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Wednesday, June 17, 1998

Lower standards of evidence used for abuse

By HEATH FOSTER
SEATTLE POST-INTELLIGENCER REPORTER

Protecting Angie: A Child Welfare Odyssey
When parents are first questioned by investigators from Child Protective Services about alleged abuse of their children, they enter a justice system with different rules than those found in the state's criminal courts.

In criminal cases, the accused has the right to a jury trial. And that jury must be unanimously convinced "beyond a reasonable doubt" that the defendant committed a crime before returning a guilty verdict.

But in civil dependency courts, where the mission is to ensure children can be swiftly removed from harm's way, judges, and not juries, make decisions about whether children will be able to go home.

And those judges use lower standards of evidence to decide if allegations of abuse and neglect have merit and whether parents' rights to their children should be terminated.

Instead of beyond a reasonable doubt, they rely on two lesser levels of proof - "a preponderance of evidence" and "clear, cogent and convincing."

The use of these lower standards has generated a controversy that pits the need to protect children against the need to ensure that parents aren't unjustly deprived of their kids.

Child advocates say abuse cases, which often put the word of a child against that of an adult, are extraordinarily hard to prove "beyond a reasonable doubt" and require less stringent standards.

But parents compare the loss of a child to a civil death penalty.

And some defense attorneys argue that with such extraordinarily high stakes, only the highest standards of proof should be applied. The current system, they say, allows judges to separate parents from their children on the basis of flimsy evidence.

The standards are:

Preponderance of the evidence
At a fact-finding hearing, judges use the lowest standard -- "a preponderance of the evidence" -- to decide whether allegations are founded.
According to University of Washington criminal law Professor John Junker, a judge can find that the allegations are legitimate if the judge thinks it's more likely than not -- at least a 51 percent chance -- that the abuse happened.
Clear, cogent and convincing
This level of proof is higher than a preponderance of the evidence, but still slightly lower than beyond a reasonable doubt. The standard of "clear, cogent and convincing" is what the state uses at the final level of the child protective process to decide whether parental rights should be terminated.

Case referral process:

Each year the state places about 5,000 new children in foster care or relatives' care because social workers determine that they are no longer getting adequate care and protection at home.

First contact:

Referrals of abuse that come into CPS are evaluated for their relative risk. In cases where it is deemed the child may be in immediate danger of being abused, a social worker responds in 24 hours. In less risky cases, social workers have a maximum of ten days to respond.

In order to take a child into emergency protective care, the Child Protective Services workers must either seek an order from a juvenile court judge, or ask local police to pick up a child.

Once a child is placed in protective care, parents must be given a "temporary custody notification," which advises them when a shelter care hearing has been set and who they should contact at the courts and at CPS for more information. Upon first contact with parents, social workers are supposed to provide "The Parents Guide to Child Protective Services" which describes all the possibilities ahead in detail and how to complain about the process.

Dependency filed:

When the Department of Social and Health Services decides that a child should become a temporary dependent of the state while problems within a family are resolved, the agency files a dependency petition with the Superior Court's Juvenile Court.

Seventy-two hearing:

Within 72 hours of a child's removal from a home, excluding weekends and holidays, a court hearing must be held to review the allegations. The judge can accept hearsay evidence at this hearing. The judges listen to opinion of state social workers and to parents. In most counties, a judge assigns the parents an attorney. And the judge decides whether the child needs a guardian ad litem, a court-appointed advocate to represent the child's interests. A determination is made whether to provide the child with continued shelter care.

Thirty-day hearing:

In King County, a hearing is held to review the child's placement, parents progress, and whether state wants to go forward in pursuing the dependency.

Fact-finding hearing:

Within 75 days, a fact-finding hearing must be held, though the court can choose to delay it. At this hearing the judge determines whether to grant the dependency the state has sought. Allegations of abuse are examined. The court needs to find by a preponderance of the evidence that the allegations are founded. If founded, the children become temporary dependents of the state.

During a dispositional hearing often held directly after the fact finding, a judge reviews the child's placement. If children have remained in their homes until this juncture in the case, the judge needs "clear, cogent and convincing" to remove them. The judge also reviews what the parental difficulties are and what services may be needed to help the child return home. Within two weeks, he must order a "dispositional plan," which sets criteria parents must meet if they are to retain custody of their children back.

Six-month review:

A status hearing is held and judge reviews parents' progress.

Twelve-month review:

A complete hearing is held during which a judge listens to evidence and a plan is made for the permanent placement -- or return home -- of the child.

Thereafter:

There are reviews every three to six months, depending on the case's circumstances, until a resolution is achieved.

P-I reporter Heath Foster can be reached at 206-448-8337 or heathfoster@seattle-pi.com

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