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Can the Department of Children and Families take my child?

Produced by Massachusetts Law Reform Institute
Reviewed February, 2021

What does DCF have to do to take my child?
Can DCF ever take my child before they get permission from the court?
What happens next?
Where is my child until the 72-hour hearing?
What happens at the “72-hour hearing”?
What happens after the 72-hour hearing?
Pre-trial conference
What happens at trial?
What happens after the judge decides?

A Care and Protection Petition asks the state to get involved with your family.

A Care and Protection Petition asks the court to protect your child from abuse or neglect at home. If the court decides your child needs to be protected, it can order that your child be removed from your care.

When someone files a Care and Protection Petition, the court:

  • Notifies the Department of Children and Families (DCF), and,
  • Summons both parents to show why the court does not need to order DCF to take your child or protect your child in any other way.

Anyone who is worried about your child can file a Care and Protection Petition. Most of the time, it is DCF who files the Petition.

What does DCF have to do to take my child?

If DCF thinks the only way to protect your child from abuse or neglect is to take your child, they must get permission from the court. So, they file a Care and Protection Petition.
At court, they must swear that they believe your child:

  • Is suffering from serious abuse or neglect, or
  • Is in immediate danger of serious abuse and neglect, and
  • Can only be protected from serious abuse or neglect if DCF takes them.

Important

DCF must also swear that they made reasonable efforts to keep your child at home.

After the judge hears from DCF, the judge can issue an emergency order. The order gives custody of your child to:

  • DCF, or
  • A licensed child care provider.

The court can give them temporary custody for up to 72 hours.

Can DCF ever take my child before they get permission from the court?

If DCF thinks your child is in so much danger they do not have time to get a court order, they can take your child right away. Then they must get a court order immediately afterwards or on the next business day. When they go to court and file the Care and Protection Petition, they must also file a report that explains why they took your child before they got permission from the court. When DCF goes to court, the court can give them temporary custody for up to 72 hours.

Note

If the DCF worker comes to your house to take your child, you can ask them to let your child stay with relatives or close friends while the situation gets sorted out.

What happens next?

The court must hold a hearing within 72 hours. At the hearing the court decides if your child can come home. This hearing is often called a “72-hour hearing.” You should get a notice from the court.

Where is my child until the 72-hour hearing?

DCF decides where your child stays. They can place your child with a relative, in a foster home, or at a residential group home. Their decision is based on your child’s age and needs.

What happens at the “72-hour hearing”?

At the hearing, the court decides if the temporary custody order will continue for more than 72 hours. The hearing is closed to the public.

The court appoints a lawyer for your child for free. You should have a lawyer also. If you cannot afford a lawyer, the court will appoint one, for free or for a small fee.

If you want your child back, you need to show up for the hearing. The judge needs to see you and hear from you.

If you do not feel confident reading or speaking English, you have the right to an interpreter.

If you cannot get to the hearing because you live far away, or you have a disability, or you have another good reason, you may be able to “appear” in court by telephone or internet service.

If you need an interpreter or you need to appear by telephone or Internet, let the court know as soon as you get notice of the hearing.

At the hearing, DCF, you, and your child's lawyer all have the right to speak and present evidence. This is usually the first time you or your lawyer has the chance to learn DCF’s side of the story. This is the time for you to ask the judge to return custody of your child to you or to give temporary custody to another person, like a family member or friend.

Each side can give the court documents and question witnesses. Each side can explain:

  • If your child should be returned home,
  • If removal of your child from the home should continue, or
  • If some other arrangement should be made, like sending your child to live with a relative.

The judge then has to decide if coming home would put your child in immediate danger. If the judge decides it is too dangerous, they will give temporary custody of your child:

  • to another person, like a relative, or
  • to DCF.

If the judge decides that your child can come home, the judge may order you to follow some rules and do some things.

In some cases, the judge decides that DCF was wrong to take your child. So the judge will dismiss the case and the case is over.

What happens after the 72-hour hearing?

If the judge does not dismiss the case, they appoint a court investigator

The investigator works for the court. They do not work for DCF, you or your child. The investigator interviews the parties, you, your child, service providers, and other people who know your family. They review the DCF and court files and other documents about the case. Then the court investigator writes a report with recommendations.

At the same time you, DCF, any foster parents, and your child should come up with a plan for your child to come home. The plan should have steps that prevent your child from needing care and protection from the court. This plan is often called a “service plan.” If your child is under 14, their lawyer works on the plan.

The service plan is an agreement between you and DCF. It includes everything you, your family, and DCF must do. The service plan includes tasks to complete so your child can come home. These tasks can be doing things like taking parenting or anger management classes, going to counseling, finding better housing, or taking drug or alcohol tests.

You need to sign the service plan. But only sign it if you understand it and you can do the things you agree to.

Once you sign the plan, you need to follow it. DCF will probably check to see if you are following it. You, your lawyer, and your child’s lawyer should keep track of DCF and other service providers to see if they are doing what they agreed to.

Pre-trial conference

A few months after the 72-hour hearing, everyone meets for a pre-trial conference to prepare for and select a date for a trial.

What happens at trial - Can I lose my child permanently?

At the trial the judge must decide if your child needs care and protection from the court and who should have custody long-term.

You and your child have the right to a lawyer and to present evidence, like you did at the 72-hour hearing.

The judge must put your child’s health and safety first when they decide if:

  • You should lose all your rights to your child and your child can be adopted.
  • Your child should stay with you, the other parent, a family member, a guardian, or other caretaker.
  • Your child should stay with you, the other parent, a family member, a guardian, or other caretaker with supervision.
  • It is safe for your child to return home if your family gets the services you need.
  • DCF should have custody of your child.

What happens after the judge decides?

If the judge decides that you should lose all your rights to your child and your child can be adopted, your Care and Protection case is over. But you can appeal to a higher court and ask them to overturn the decision.

If the judge decides to give custody of your child to DCF, another family member, a guardian or another caretaker:

  • You may file a petition to ask the court to review their decision.
  • You must wait at least 6 months from the judge's decision before you can file your petition.
  • You must wait at least 6 months before you can file another petition to review.
  • The judge must make a final order within 15 months from the date the Care and Protection case was filed.
  • You may not get time to file a petition for review.
  • The judge can extend the 15-month deadline for up to 3 months.

If the judge decides your child can return home, other people can file a petition to review. They are:

  • DCF,
  • Your child’s other parent,
  • Anyone who has legal custody of your child,
  • A probation officer,
  • Your child’s guardian,
  • Your child’s lawyer, and
  • A court-appointed guardian ad litem.

These people can also file a petition to review the judge’s decision to give custody to someone else.

The timeline for petitions to review is the same for everybody.

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