2006 Code of Virginia § 16.1-252 - Preliminary removal order; hearing

16.1-252. Preliminary removal order; hearing.

A. A preliminary removal order in cases in which a child is alleged to havebeen abused or neglected may be issued by the court after a hearing whereinthe court finds that reasonable efforts have been made to prevent removal ofthe child from his home. The hearing shall be in the nature of a preliminaryhearing rather than a final determination of custody.

B. Prior to the removal hearing, notice of the hearing shall be given atleast twenty-four hours in advance of the hearing to the guardian ad litemfor the child, to the parents, guardian, legal custodian or other personstanding in loco parentis of the child and to the child if he or she istwelve years of age or older. If notice to the parents, guardian, legalcustodian or other person standing in loco parentis cannot be given despitediligent efforts to do so, the hearing shall be held nonetheless, and theparents, guardian, legal custodian or other person standing in loco parentisshall be afforded a later hearing on their motion regarding a continuation ofthe summary removal order. The notice provided herein shall include (i) thetime, date and place for the hearing; (ii) a specific statement of thefactual circumstances which allegedly necessitate removal of the child; and(iii) notice that child support will be considered if a determination is madethat the child must be removed from the home.

C. All parties to the hearing shall be informed of their right to counselpursuant to 16.1-266.

D. At the removal hearing the child and his parent, guardian, legal custodianor other person standing in loco parentis shall have the right to confrontand cross-examine all adverse witnesses and evidence and to present evidenceon their own behalf. If the child was fourteen years of age or under on thedate of the alleged offense and is sixteen or under at the time of thehearing, the child's attorney or guardian ad litem, or if the child has beencommitted to the custody of the Department of Social Services, the localdepartment of social services, may apply for an order from the court that thechild's testimony be taken in a room outside the courtroom and be televisedby two-way closed-circuit television. The provisions of 63.2-1521 shallapply, mutatis mutandis, to the use of two-way closed-circuit televisionexcept that the person seeking the order shall apply for the order at leastforty-eight hours before the hearing, unless the court for good cause shownallows the application to be made at a later time.

E. In order for a preliminary order to issue or for an existing order to becontinued, the petitioning party or agency must prove:

1. The child would be subjected to an imminent threat to life or health tothe extent that severe or irremediable injury would be likely to result ifthe child were returned to or left in the custody of his parents, guardian,legal custodian or other person standing in loco parentis pending a finalhearing on the petition; and

2. Reasonable efforts have been made to prevent removal of the child from hishome and there are no alternatives less drastic than removal of the childfrom his home which could reasonably and adequately protect the child's lifeor health pending a final hearing on the petition. The alternatives lessdrastic than removal may include but not be limited to the provision ofmedical, educational, psychiatric, psychological, homemaking or other similarservices to the child or family or the issuance of a preliminary protectiveorder pursuant to 16.1-253.

When a child is removed from his home and there is no reasonable opportunityto provide preventive services, reasonable efforts to prevent removal shallbe deemed to have been made.

F. If the court determines that pursuant to subsection E hereof the removalof the child is proper, the court shall:

1. Order that the child be placed in the temporary care and custody of asuitable person, subject to the provisions of subsection F1 of this sectionand under the supervision of the local department of social services, withconsideration being given to placement in the temporary care and custody of arelative or other interested individual, including grandparents, until suchtime as the court enters an order of disposition pursuant to 16.1-278.2,or, if such placement is not available, in the care and custody of a suitableagency;

2. Order that reasonable visitation be allowed between the child and hisparents, guardian, legal custodian or other person standing in loco parentis,if such visitation would not endanger the child's life or health; and

3. Order that the parent or other legally obligated person pay child supportpursuant to 16.1-290.

In addition, the court may enter a preliminary protective order pursuant to 16.1-253 imposing requirements and conditions as specified in that sectionwhich the court deems appropriate for protection of the welfare of the child.

F1. Prior to the entry of an order pursuant to subsection F of this sectiontransferring temporary custody of the child to a relative or other interestedindividual, including grandparents, the court shall consider whether therelative or other interested individual is one who (i) is willing andqualified to receive and care for the child; (ii) is willing to have apositive, continuous relationship with the child; and (iii) is willing andhas the ability to protect the child from abuse and neglect. The court'sorder transferring temporary custody to a relative or other interestedindividual should provide for compliance with any preliminary protectiveorder entered on behalf of the child in accordance with the provisions of 16.1-253; initiation and completion of the investigation as directed by thecourt and court review of the child's placement required in accordance withthe provisions of 16.1-278.2; and, as appropriate, ongoing provision ofsocial services to the child and the temporary custodian.

G. At the conclusion of the preliminary removal order hearing, the courtshall determine whether the allegations of abuse or neglect have been provenby a preponderance of the evidence. Any finding of abuse or neglect shall bestated in the court order. However, if, before such a finding is made, aperson responsible for the care and custody of the child, the child'sguardian ad litem or the local department of social services objects to afinding being made at the hearing, the court shall schedule an adjudicatoryhearing to be held within thirty days of the date of the initial preliminaryremoval hearing. The adjudicatory hearing shall be held to determine whetherthe allegations of abuse and neglect have been proven by a preponderance ofthe evidence. Parties who are present at the preliminary removal orderhearing shall be given notice of the date set for the adjudicatory hearingand parties who are not present shall be summoned as provided in 16.1-263.The hearing shall be held and an order may be entered, although a party tothe preliminary removal order hearing fails to appear and is not representedby counsel, provided personal or substituted service was made on the person,or the court determines that such person cannot be found, after reasonableeffort, or in the case of a person who is without the Commonwealth, theperson cannot be found or his post office address cannot be ascertained afterreasonable effort.

The preliminary removal order and any preliminary protective order issuedshall remain in full force and effect pending the adjudicatory hearing.

H. If the preliminary removal order includes a finding of abuse or neglectand the child is removed from his home or a preliminary protective order isissued, a dispositional hearing shall be held pursuant to 16.1-278.2. Thedispositional hearing shall be scheduled at the time of the preliminaryremoval order hearing and shall be held within seventy-five days of thepreliminary removal order hearing. If an adjudicatory hearing is requestedpursuant to subsection G, the dispositional hearing shall nonetheless bescheduled at the initial preliminary removal order hearing. All partiespresent at the preliminary removal order hearing shall be given notice of thedate scheduled for the dispositional hearing; parties who are not presentshall be summoned to appear as provided in 16.1-263.

I. The local department of social services having legal custody of a child asdefined in 16.1-228 (i) shall not be required to comply with therequirements of this section in order to redetermine where and with whom thechild shall live, notwithstanding that the child had been placed with anatural parent.

J. Violation of any order issued pursuant to this section shall constitutecontempt of court.

(1977, c. 559; 1984, c. 499; 1985, c. 584; 1986, c. 308; 1990, c. 769; 1994,c. 42; 1995, c. 817; 1997, c. 790; 1999, c. 668; 2000, c. 385.)