When children are removed from an emergency basis from their parents/guardians the Court is required to hold a probable cause hearing within 72 hours of removal where DSS has to prove that it had probable cause at the time of removal and that probable cause still exists at the time of the hearing such that it is necessary to keep custody of the children. This hearing comes very fast and in most instances, parents attend the hearing without a lawyer. I don’t know if this is because they can’t afford representation or they just don’t know what their rights are. In the event you are unable to find an attorney to go the 72-hour Probable Cause hearing with you hear are a few quick tips that will hopefully help prepare you a little bit:
The 72-hour probable cause hearing is similar to a preliminary hearing in criminal court. That means you often do not have time to obtain a lawyer so the hearing is typically skewed against you and because DSS’s burden of proof is extremely low things generally do not change at this type of hearing.
The hearing will be very fast – probably less than 15 minutes. The judge’s job in this hearing is to consider whether DSS had probable cause at the time of removal and that probable cause still exists such that it is necessary for DSS to retain placement of the children.
At this hearing you and your family will not be allowed to testify. The DSS caseworker and/or investigator will describe the case to the judge. Your will have an opportunity to cross-examine the caseworker/investigator.
You also have the right to submit affidavits on your behalf to the judge that would essentially be your testimony. Here is your opportunity to put your side of the story out there for the judge.
After this hearing you will typically be appointed counsel if you can’t afford to hire an attorney and a Guardian ad Litem will be appointed to represent your children and a merits hearing will be scheduled where DSS will present a treatment plan for you and where you will be able to contest the removal of your children further.