Mississippi Administrative Code › Title 18 - HUMAN SERVICES › Part 6 - Division of Family and Children's Services › Chapter 1 - DFCS Policy Manual › Section 18-6-1-A - Administration › Subpart II - SERVICE DELIVERY › Section 18-6-1-A-II-XIII - INHERENT RIGHTS OF CHILD AND FAMILY

Current through June 25, 2024
In addition, workers must recognize other specific
						constitutional, legal rights and entitlements of children and families in child
						maltreatment cases and practice within these boundaries:
The court system accords both parents and children
						certain legal rights and entitlements, depending on the type of proceeding in
						which they are involved, including:
* The right to family integrity;
* The right to notice of the proceedings;
* The right to a hearing;
* The right to counsel;
* The right to a jury trial;
* The CAPTA requirement of a GAL or court-appointed
						special advocate;
* The entitlement to reasonable efforts.
Parents and children must not only be informed of their
						rights, but they also must understand the protections those rights afford them.
						Court representatives and workers shall educate families about their rights and
						help them feel empowered in an otherwise intimidating process.
A.
The Right to Family Integrity
The legal framework regarding the parent-child
						relationship balances the rights and responsibilities among parent, child, and
						State, as guided by Federal statutes. It has long been recognized that parents
						have a fundamental liberty interest, protected by the Constitution, to raise
						their children as they choose. This parent-child relationship grants certain
						rights, duties, and obligations to both parent and child, including the
						responsibility of the parent to protect the child's safety and well-being. If a
						parent, however, is unable or unwilling to meet this responsibility, the State
						has the power and authority to take action to protect a child from significant
						harm.
CAPTA is one of the primary pieces of Federal legislation
						guiding casework and it supports the right of family integrity through
						community-based grants that aim to strengthen families. Of course, this right
						is not absolute. A compelling State interest, such as the need to protect
						children from significant harm, will justify infringement on the right to
						family integrity.
B.
The Right to Notice of the Proceedings
Parents or other custodians of a child have the right to
						"notice" of any petition filed regarding that child and to be notified of any
						hearing regarding that petition. The right to notice encompasses the right to
						be formally given the petition, which also must state what the parent has done
						or not done that makes court involvement necessary. The right to notice is a
						fundamental element of the constitutional right to due process. Due process
						specifies the right to be present in court, representation by an attorney, and
						procedures that are speedy, fair, and impartial. It applies to both parents,
						whether or not they are living together. Orders entered without notice are
						subject to being withdrawn.
Putative fathers (those identified as the biological
						parent, but whose paternity has not been legally established) also must be
						identified in the petition and be served. Their relationship to the child needs
						to be determined as early in the proceeding as possible by formal
						acknowledgment or by genetic testing. If paternity is established, these
						fathers or their families may become financial and placement resources for the
						child.
Petitions may be filed and emergency
ex
						parte
orders may be entered without advance notice to parents.
Ex parte
is defined as being on behalf of or involving only
						one party to a legal matter and in the absence of and usually without notice to
						the other party. For example, an emergency removal of a child from an unsafe
						home situation may be done through an
ex parte
order. Action
						must be taken, however, to serve the parents with the petition and order as
						quickly as possible. Foster parents and kinship care providers also must be
						notified of pending court hearings and be given an opportunity to be heard
						during these proceedings.
C.
The Right to a Hearing
A fundamental element of due process is the right to a
						hearing on the merits of a petition, including the right to cross-examine or to
						question any witness called by DFCS, by the other parent, or on behalf of the
						child, as well as the right to present evidence on one's own behalf
D.
The Right to
					 Counsel
Parents have a right to retain counsel or seek legal aid
						or pro bono services in child maltreatment cases.
E.
The CAPTA Requirement of a Guardian
ad litem
or Court-appointed Special Advocate
Children who allegedly have been maltreated are entitled
						to a Guardian
ad litem
(GAL), who is an independent advocate
						for the children's best interest. States must comply with this requirement in
						order to satisfy CAPTA State Grant funding requirements.
The GAL role may be fulfilled by the appointment of an
						attorney, a volunteer who is not an attorney, or both. Volunteers also may be
						called Court-Appointed Special Advocates (CASA). The volunteers often are
						professionals trained in other disciplines, such as nursing, psychology, or
						education. Responsibilities of the GAL or CASA include:
* Meeting the child;
* Exploring the facts of the case;
* Obtaining medical, educational, and other records;
* Determining the child's perspective and needs;
* Identifying appropriate services and resources;
* Monitoring the progress of the case;
* Promoting the child's interests.
Where both an attorney and a GAL are appointed, it is
						with the expectation that they will function as a team in performing those
						tasks and in advocating for the child, as well as in making the child's own
						views known to the court. These advocates can be valuable sources of knowledge
						and information and important allies when they and DFCS worker concur on how
						the case should be resolved.
MISS. CODE ANN. §
												43-21-121(4)
						states "The court may appoint either a suitable attorney or a suitable layman
						as guardian ad litem. In cases where the court appoints a layman as guardian ad
						litem, the court shall also appoint an attorney to represent the child".
See
MISS. CODE ANN. §
												43-21-121
						for a complete description of the duties of a Guardian
ad
						litem.
F.
The Entitlement to Reasonable Efforts
Except in certain aggravated circumstances, parents and
						children are entitled under the Adoption Assistance and Child Welfare Act (
						P.L. 96-272 ) and Adoption and Safe Families Act (ASFA) (
						P.L.
						105-89 ) to have State agencies make reasonable
						efforts to keep them together, or if a child has been removed from the family,
						to make reasonable efforts to reunify the family. ASFA also states that
						children who are not going to be reunited with their families are entitled to
						reasonable efforts by State agencies or departments to secure a permanent
						placement for them.
Federal law further requires that judges decide at each
						critical stage of an abuse or neglect case whether the DFCS has complied with
						the reasonable efforts requirement. The obligation to make reasonable efforts
						applies to DFCS workers alone, not to the parents, any other individuals, or
						service providers.