Navigating Orders of Temporary Custody: From Affidavit to OTC Trial
This guide outlines the legal process involving temporary custody orders, starting from the initial filing to the OTC trial. It covers the necessary steps, legal standards, client interviews, and next actions to ensure the safety and welfare of the child in question.
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Dealing with Orders of Temporary Custody from Affidavit to OTC Trial Christopher Oakley, Esq. Stacy Schleif, Esq. Name Name, Esq Title Date cca-ct.org
Timeline Report of Abuse/Neglect (DCF-136) Investigation 96 hour hold Preliminary Hearing OTC Trial Neglect Petition Case Status Conference Plea/Dispo Neglect Trial Motion to Review Permanency Reunification/TOG/PTOG/TPR/APPLA cca-ct.org
Legal Standard Child is suffering from serious physical illness or serious physical injury OR is in immediate physical danger from the child or youth s surroundings; AND As a result of said conditions, the child s safety is endangered and immediate removal from such surroundings is necessary to ensure the child or youth s safety. C.G.S.A. 46b-129(b) cca-ct.org
Initial Filing Short notice 10 day date Child s attorney gets appointed immediately & foster home info is provided File Appearance Review paperwork: oOTC petition oSocial Worker affidavit(s) oNeglect Petition and Summary of Facts In Support cca-ct.org
Next Steps - Childs Counsel Next steps after receiving OTC paperwork: Visit with child Conduct needs assessment oInterviews with child, caregiver, DCF SW oPaperwork review Preliminary requests to DCF prior to initial court date to address: o School stability o Visitation o Medical/Mental Health care o Assessing a placement resource cca-ct.org
Client Interview: Child Build rapport and develop trust Client-directed representation Confidentiality discussion Explain court process & different roles Discussion of allegations Assess appropriateness of placement Where does child want to live, visits, school cca-ct.org
Client Interview: Parent Discussion of confidentiality Address allegations, court procedures, and different roles (atty, SW, court, etc.) Discuss whether parent can eliminate or ameliorate safety risks Discuss services recommended & already involved with Identify another person who can care for the child, including the other parent Counsel on whether to agree to sustain OTC or request trial cca-ct.org
Mock Case File Child: F., 14 years old Facts: oMom in altercation at shelter with another resident & arrested. oNo one available to care for F. oFather says his wife doesn t want F to live with them. He proposed a maternal aunt. oDCF took a 96 hour hold. OTC: oImmediate physical danger from surroundings oR.E. to prevent removal were not possible cca-ct.org
Issues for OTC Mother s arrest and incarceration Facing homelessness shelter won t take her back Mother s MH issues: Bipolar, Sedative Dependence, Depression, Anxiety Mother s substance use: heroin, cocaine F s MH issues: Disruptive Behavior Disorder, OCD, PTSD, sexual abuse hx Father is not a resource cca-ct.org
Standard for OTC For court to sustain OTC following a contested hearing: Burden is fair preponderance of evidence Focus is on present; not appeal of ex parte order cca-ct.org
Preliminary Hearing Conference with Court Services Officer, lawyers, DCF social worker Attorneys review any additional paperwork from DCF Counsel for parent(s) review allegations with clients, determine questions, issues for discussion, position on OTC Parties resume discussion with CSO Parties determine position re: OTC, i.e. sustain or ask for trial date Parties should discuss agreements/disputes re: visitation, placement resources, preliminary service referrals/assessments Negotiate Specific Steps Have clients sign releases for service providers, etc. Note: C.G.S. 46b-129 requires proposed placements be assessed within 30 days of OTC cca-ct.org
Preliminary Hearing, cont. Court s obligations, as established in C.G.S. 46b-129: oConfirm notice oAddress paternity oAdvise parents on their rights to trial, silence, & counsel oParent s failure to appear may result in default Plea on underlying neglect petition (typically pro forma denial) If agreement to sustain OTC, then Specific Steps will be ordered, as well as any other interim orders necessary to promote child s welfare If no agreement to sustain OTC, then trial scheduled within 10 days (can be waived) Court has authority to place child w/ any suitable agency or person Schedule Case Status Conference to discuss neglect petition and future steps in case cca-ct.org
COVID Adaptations Parking Lot / Outdoor Meetings Telephonic Conferences Timing OTCs Virtual Visits Microsoft Teams Conferences cca-ct.org
Contested OTC Trial Must commence within 10 days of preliminary hearing & proceed on consecutive days, absent compelling circumstances. DCF must prove all elements of its case by a fair preponderance of evidence: o Serious physical illness/injury or immediate physical danger; AND o Immediate/continued removal is necessary to ensure child's safety until resolution of neglect petition o Latter phrase requires that various steps short of removal ... be used when possible. In re Juvenile Appeal (83-CD), 189 Conn. 276, 288 (1983). o Reasonable Efforts Rules of evidence, including hearsay, apply. cca-ct.org
Contested OTC Trial, cont. Issue is present day question of whether continued removal from the home is necessary during pendency of neglect petition. See C.G.S. 46b-129 Question is not whether OTC was warranted at time application was filed. cca-ct.org
Contested OTC Trial, cont. Anticipate motion to consolidate with neglect trial Anticipate need for records or witnesses: o Ask court to direct DCF to provide LINK record and Investigation Protocol by date certain Indicate what witnesses you will need DCF to produce, e.g. mandated reporter included in affidavit. cca-ct.org
Contested OTC Trial, cont. Trial Preparation Request DCF Records See C.G.S. 17a-28 oDiscovery permitted, but discretionary (See P.B. 34a-20) oNote: DCF record defined by statute as anything created or obtained by DCF Subpoenas witnesses See C.G.S. 52-143 Review Rules of Evidence oChild as witness See P.B. 32a-4 oStatements of child at OTC hearing See C.G.S. 46b-129(g) oStatements of child in neglect or TPR proceeding See In re Tayler F. (2010), Hearsay/Tender Years exceptions cca-ct.org
If OTC is Sustained Court will vest custody in DCF or suitable third party oTIP: Consider vesting OTC in relative who is suitable but may have licensing challenges. Court will order Specific Steps for parent to regain custody. oTIP: Creation of initial specific steps happens quickly. Make sure services are necessary, actually designed to help family, and feasible. See C.G.S. 46b-129 cca-ct.org
Vacating OTC If guardian s situation is remedied, counsel can seek to vacate OTC and restore custody. oIn re Juvenile Appeal (83-CD), 189 Conn. 276 (1983) No time constraints on this motion Protective Supervision as alternative request open court case but child is at home cca-ct.org
Vacating OTC What happens to Neglect Petition? Petition has separate plea date assigned Court often requests parent to enter pro forma denial on neglect petition at same time OTC is determined Court schedules Case Status Conference to discuss neglect plea and disposition Attorney General s office often moves to consolidate OTC and neglect trial o Removes second bite at apple o Commits child to DCF much more quickly o Consider pros and cons cca-ct.org
Considered Removal Meeting DCF administrative meeting - required where child is being considered for immediate removal from home based a safety factor. Should include parents, attorneys, DCF SW & supervisor, other family members, professionals working with family. Facilitated by DCF Considered Removal facilitator, outside normal chain of command on case. May happen before you are appointed, or later on in a Protective Supervision case. See DCF Policy 21-2-1 cca-ct.org
Questions? Christopher Oakley, Esq. Oakley Law Offices ChrisOakley@ctlawpractice.com 860.342.2302 Stacy L. Schleif, Esq. Center for Children s Advocacy sschleif@cca-ct.org 860.570.5327 cca-ct.org
