CHILDREN IN NEED OF PROTECTION OR SERVICES—FREQUENTLY ASKED QUESTIONS
Definitions of child abuse are found throughout the Minnesota statutes. Whether specific conduct constitutes child abuse varies based upon the type of court proceedings in which the allegations are being examined. For instance, allegations of child abuse may give rise to proceedings in family court, juvenile court, criminal court, or a combination of the three. This article provides a general overview of child abuse allegations in the context of family court, juvenile court, and criminal court, and sets forth a number of frequently asked questions our clients ask us on a regular basis.
1. What is the definition of “child abuse” under Minnesota Law?
Family Court
In family court (i.e. divorce or custody proceedings), the Court must make custody and parenting time determinations based upon a child’s best interest. One of the best interest factors the Court must consider is whether “domestic abuse” has occurred in either parent’s household. Under the Domestic Abuse Act, “domestic abuse” is defined as any of the following acts perpetrated by a family or household member (i.e. parent) against another family or household member (i.e. child):
(a) physical harm, bodily injury or assault;
(b) the infliction of fear of imminent physical harm, bodily injury, or assault;
(c) terroristic threats;
(d) criminal sexual conduct; or
(e) interference with an emergency call.
Juvenile Court
In juvenile court, such as in Child in Need of Protection or Services (CHIPS) proceedings, child abuse generally means committing an act of assault against a child, committing sex crimes involving a minor victim, or malicious punishment of a child. However, the definition of a child being in need of protection or services is much broader. Specifically, a child may be determined to be in need of protection or services if they (1) are abandoned; (2) have been the victim of physical or sexual abuse; (3) reside with a victim or perpetrator of child abuse; (4) are without their basic necessities; (5) are medically neglected; or (6) reside in a dangerous environment, among other circumstances.
Criminal Court
In criminal court, the criminal offenses of malicious punishment of a child and endangerment of a child specifically pertain to child abuse. Malicious punishment of a child is a caretaker’s intentional acts towards a child that constitutes unreasonable force or cruel discipline that is excessive under the circumstances. A person found guilty of malicious punishment of a child may be convicted of a gross misdemeanor if the act does not result in substantial bodily harm. This offense may, however, be enhance to a felony if committed within 5 years following discharge for a sentence for a similar offense, the child is under the age of 4, or the punishment results in substantial or great bodily harm.
Moreover, a person commits the crime of child endangerment if a caretaker endangers the child by intentionally or recklessly causing or permitting a child to be placed in a situation likely to substantially harm the child’s physical, mental or emotional health or cause the child’s death. Child endangerment also occurs if a parent knowingly causes or permits a child to be present where drugs are being manufactured or sold. Child endangerment is typically charged as a gross misdemeanor, but it may be enhanced to a felony if the endangerment results in substantial harm to a child.
Burden of Proof
While the definition of child abuse is generally similar whether being analyzed under a family court, juvenile court, or criminal court statute, the result in each court may differ based upon the requisite burden of proof that is necessary to prove that child abuse occurred. For instance, in family court proceedings, child abuse allegations only need to be proven by a preponderance of the evidence (i.e. more likely than not or 51% likelihood). In juvenile court, the burden of proof is generally clear and convincing evidence (75%). In criminal court, the prosecution must prove its case beyond a reasonable doubt (95%).
2. How are child abuse allegations investigated?
Family Court
In family court, child abuse allegations are typically investigated by a guardian ad litem or custody evaluator. A guardian ad litem is required to be appointed in family court cases if custody and parenting time is in dispute and if the court has reason to believe that a minor child is a victim of domestic child abuse or neglect. A guardian ad litem is a neutral individual appointed by the court to conduct an independent investigation of the underlying allegations by interviewing parents, children, third parties, and reviewing collateral documents. The guardian ad litem will then provide recommendations to the court regarding custody and parenting time based upon the best interests of the child. The court may also order the parents to undergo a custody or parenting time evaluation which is a process in which a neutral custody evaluator conducts a thorough investigation and submits a written report to the Court.
Juvenile and Criminal Court
In juvenile protection matters, the responsible child protection agency will investigate reports of child abuse, which is often conducted in conjunction with law enforcement if it appears as if a crime has been committed. As part of the investigation, it is typical for the child protection agency to interview the alleged offender, caregivers, the children, and any other person who has knowledge of the substance of the report. A caregiver or alleged offender is not required to cooperate with the investigation. The investigation must conclude within 45 days of receipt of the report. The results of the investigation may include the commencement of a CHIPS proceeding, Termination of Parental Rights (TPR) proceeding, and/or a criminal proceeding.
3. What is a CHIPS matter?
CHIPS stands for child in need of protection or services. A CHIPS court proceeding is commenced when there is concern for the health, safety, and welfare of a child that requires judicial intervention. A CHIPS proceeding typically commences when the local child protection agency serves and files a petition alleging that a child is in need of protection or services. If the Court determines that the children are in need of protection or services, the Court will order parents and children to complete services to address the concerns that gave rise to the CHIPS Petition being filed. Some common services include enrolling in parenting classes, completing chemical health assessments, completing psychological evaluations, and obtaining safe housing. The goal in most CHIPS matters is to reunify the family after the concerns giving rise to the CHIPS case have been corrected.
4. What happens in a CHIPS matter?
As stated above, the goal of most CHIPS proceedings is to reunify the children with their custodians at the earliest possible time. This goal is typically met after the child protection agency makes reasonable efforts to reunify the family by providing a case plan designed to correct the conditions giving rise to the CHIPS matter. As parents make progress on their case plan, the Court will determine at what point the child can safely return (or remain) in the home while the court continues to oversee the parents’ continued progress.
During a CHIPS matter, the Court may order that the child is placed in the temporary custody of the child protection agency for placement in foster care. When a child is ordered out of the home, they may be placed with a noncustodial parent, relatives, or non relative foster care. There is a preference for children to be placed with relatives whenever possible.
If a parent agrees that his or her children are in need of protection or services, the parent can enter a full or partial admission to the CHIPS Petition. If parents continue to deny the allegations in the Petition, they have a right to a Trial at which the County Attorney is required to prove that the children are in need of protection or services by clear and convincing evidence.
If, following a Trial, the Court determines that a child is in need of protection or services, the court will enter disposition regarding the placement of the child and will conduct periodic review hearings at least every 90 days where the Court will review the parents’ progress on the case plan, the visitation plan between the parents and child, and whether it is in the child’s best interests to continue working towards reunification. Parents generally have no more than 12 months to demonstrate that the conditions that gave rise to the Petition have been corrected. If it is determined that substantial progress has not been made by the parents, a permanency petition may be filed, which may include a petition to terminate parental rights.
5. Can a noncustodial parent or alleged father participate in a CHIPS matter?
Yes. The CHIPS Petition is required to be served upon all parents, including alleged fathers. Noncustodial parents or alleged fathers are initially deemed a participant (not a party) in CHIPS proceedings. A participant has the right to notice of all court hearings and may be heard at all court hearings. A noncustodial parent’s involvement in a CHIPS matter may be very important. For instance, if the custodial parent fails to comply with their case plan, the child protection agency is required to assess a noncustodial parent’s ability to meet the child’s needs. If the Agency believes that the noncustodial parent can safely care for the child, the child may be immediately placed in the care/custody of the noncustodial parent while the custodial parent works their case plan. The Agency may eventually recommend that permanent legal and physical custody be transferred to the noncustodial parent.
6. What happens if a parent does not follow the court orders in a CHIPS matter?
Once a child is adjudicated by the Court as being in need of protection or services, the custodial parent(s) are expected to complete their case plans to the satisfaction of the court in order to reunify with their children. If a custodial parent is making little to no progress on their case plan goals, the Agency may request that the Court order a permanency petition to be filed. This request can be made after a child has been out of the home for 6 months. If, at the 6-month mark, the parent has been making progress on their case plan, they are typically given an additional 6 months to demonstrate their progress.
A permanency petition generally must be filed if a child has been in out of home placement for 11 months. A permanency petition is a separate court case in which a request is made for permanent placement of a child away from a parent. The most common permanency petitions are for termination of parental rights (TPR) or a transfer of permanent custody to a relative (or to the other parent).
7. Can a parent file their own TPR Petition to terminate the other parent’s parental rights?
Yes. While typically, a CHIPS petition is brought by a child protection agency, a private CHIPS petition may be brought by any reputable person who has knowledge of a child that appears to be in need of protection or services. The private party is generally a parent of a child alleged to be in need of protection or services based upon the conduct of the other parent. The private party commencing a CHIPS matter is responsible for complying with all rules and notice requirements that are required of the government when filing CHIPS Petitions.
A parent may also file a petition to terminate the parental rights of the other parent. The parent seeking to terminate the other parent’s parental rights would have to prove the required elements tor TPR by clear and convincing evidence. A private TPR is most often pursued if a step-parent wishes to adopt a child and if a biological parent has abandoned the child. A court will generally not grant a private TPR petition unless it is shown that there is a second parent ready, willing and able to adopt the child.
As a matter of public policy, even if one parent has been absent from a child’s life, Courts do not want to terminate parental rights to one parent and leave the child with just one legal parent. By terminating parental rights, the other parent is no longer financially responsible for supporting the child. Just because both parents agree to terminate parental rights does not increase the likelihood that a court will grant the request. A parent seeking to voluntarily terminate his or her rights will only be successful if there is good cause present. A parent will not demonstrate good cause if the reason for seeking termination is to avoid paying child support.
8. If I receive a CHIPS Petition only outlining concerns for my child’s wellbeing in the other parent’s care, can I file a motion to modify custody in family court?
No. Once a juvenile protection or CHIPS matter is commenced, the juvenile court (not the family court) has continuing and exclusive jurisdiction over a child. This means that the family court is prohibited from simultaneously entering custody orders for children who are the subject of a juvenile court proceeding. Not only does this include child custody proceedings, but this includes orders for protections filed on behalf of a child as well. Only upon the dismissal or closing of a juvenile court file may a family court matter involving a child move forward.
The attorneys at RAM Law are well-versed in family law, child protection, termination of parental rights, and criminal court proceedings. The intersect between these separate court systems may be complicated, as they are each governed by a completely different set of rules. If you are involved in a CHIPS, TPR, custody, or criminal court matter involving allegations of child abuse or neglect, contact the experienced attorneys at RAM Law PLLC to schedule your initial case evaluation.