Juvenile Court Foster Care Eligibility Toolkit: Detention Hearing

The Detention Hearing is the first court hearing held after the county child welfare agency or probation agency files a petition seeking to declare a child a dependent or ward of the court.

The court must determine whether the child should be detained or can remain with or be released to the care and custody of a parent or guardian.

1. In order to detain the child in dependency, the court must find that there is a substantial danger to the child’s physical health (by physical, sexual abuse, neglect) or the child is suffering from severe emotional damage and there are no reasonable means to protect the child without removal (WIC 319).
2. In delinquency, the court must find that it is a matter of immediate and urgent necessity for the protection of the person or property of another, that the child be detained, or that the child is likely to flee to avoid jurisdiction of the court and that continuance in the home is contrary to the child’s welfare (WIC 636(a)).

Timelines

When a child has been detained, a petition must be filed within two judicial court days of the protective custody hold and a hearing to determine if the child is to remain detained must be held no later than the end of the next court day after the petition is filed. (WIC 313, 315, 631(a)).

The “Date the Child Entered Foster Care” (DEFC):
a. Dependency proceedings (WIC 362.49): The earlier of the first finding of abuse or neglect or 60 days after the child is physically removed from the home.
b. Delinquency proceedings (WIC 727.4(d)(4)): 60 days after the date on which the child is physically removed from the home unless the following apply:

• The child is in an ineligible facility
• The date of entry into foster care is the date of the hearing at which placement into a foster care eligible facility is ordered.

Notice

The social worker must notify the parents of the hearing at least 24 hours beforehand.

Counsel

The parents and child will be appointed counsel.

Report

The social worker or probation officer must submit a report for the Detention Hearing. Eligibility staff should refer to this report to determine when the child was physically removed from the home and who the child was living with at the time.

Parentage

The court must make inquiries as to the identity and whereabouts of any and all parents, presumed, biological, or alleged. There are often questions which arise about the father in a case. The court has many categories of fathers.

1. Alleged Father: A man is an alleged father if he appears at a hearing and claims to be the child’s father or is named by the child’s mother as the father.
2. Biological Father: A man is the biological father if his paternity is proven by a blood test, but he has not achieved presumed father status. This category includes persons adjudicated to be fathers in a prior family law or child support case, either on the basis of blood test or default judgment only.
3. “Kelsey S.” Father: A man is a “Kelsey” father if he is the biological father, and he promptly attempts to fulfill parental responsibilities but is unable to establish presumed father status through no fault of his own.
4. Presumed Father: A man qualifies as the presumed father under any of the following circumstances:
   a. He was married to the child’s mother at the time of the child’s birth (or the child was born within 300 days of separation) (Family Code (FC) 7540).
   b. He and the mother are over 18 years old, are not married to anyone else and a couple and file a Voluntary Declaration of Paternity (FC 7573).
   c. He married the child’s mother after the child’s birth and is either named on the child’s birth certificate or has a voluntary or court-ordered child support obligation (FC 7611(c)).
   d. He has lived with the child and held himself out as the child’s father (FC 7611(d)).
   e. He and the mother have signed a voluntary declaration of parentage (FC 7570).

NOTE: However, the only father that is used for linkage determination is the biological or adoptive father. For income determination, a stepfather’s income may also be considered.

Determination of Detention Status

• The court must determine whether the child should remain with or be released to the parent’s care and custody.
• The court must order the child released to the parent unless the Agency has proved that:

1. The child falls within WIC 300, 601 or 602.
2. Continuance in the parent’s custody is contrary to the child’s welfare.

1. For a child to then be eligible for federal foster care funds, the court must make the following findings and orders at the Detention Hearing: 

• Contrary to the Welfare: The court must make a finding that remaining in the current home would be contrary to the child’s welfare. This finding does not need to have the exact same wording but must make it clear that it is not safe or contrary to the welfare finding to remain in the home.
  • If the contrary to the welfare finding is not made at the first court hearing, then the case is never eligible for IV-E foster care funding for the out of home placement. Nonfederal foster care funds can be paid once the finding is made, provided all of other eligibility criteria are met.
  • Placement and Care: The court must make a finding that the child is placed under the jurisdiction of the county agency. At this hearing, it is generally stated, “Temporary Placement and Care is vested with the county.”
  • Reasonable Efforts: The court must make a finding that the county has made reasonable efforts to prevent removal of the child from the home.
    • This finding can be made at a later court hearing (no later than 60 days after removal) if missed at the Detention Hearing, but payment cannot begin prior to the court ordering the other findings.

Download and review samples.

Sample Juvenile Dependency Petition

Sample Juvenile Wardship Petition

Sample Detention Hearing Court Order Dependency

Sample Detention Hearing Court Order Delinquency