15-11-145. Preliminary protective hearing requirements; consideration of hearsay evidence.

If an alleged dependent child is removed from his or her home and is not returned home, the preliminary protective hearing shall be held promptly and not later than 72 hours after such child is placed in foster care; provided, however, that if the 72 hour time frame expires on a weekend or legal holiday, the hearing shall be held on the next day which is not a weekend or legal holiday.#

Reasonable oral or written notice of the preliminary protective hearing, stating the time, place, and purpose of the hearing, shall be given to the child who is a party in such hearing and, if such person can be found, to his or her parent, guardian, or legal custodian.#

If an alleged dependent child’s parent, guardian, or legal custodian has not been notified of the preliminary protective hearing and did not appear or waive appearance at such hearing and thereafter files an affidavit showing such facts, the court shall rehear the matter without unnecessary delay and shall order such child’s release unless it appears from such hearing that such child’s foster care is warranted or required.#

The following persons shall have the right to participate in the preliminary protective hearing:#

1. (1)

   A child’s parent, guardian, or legal custodian, unless such person cannot be located or fails to appear in response to the notice;#

2. (2)

   A child’s attorney and guardian ad litem if a guardian ad litem has been appointed;#

3. (3)

   A child who was removed from his or her home, unless the court finds, after considering evidence of harm to such child that will result from such child’s presence at the proceeding, that being present is not in such child’s best interests;#

4. (4)

   A parent’s attorney if an attorney has been retained or appointed;#

5. (5)

   The assigned DFCS caseworker; and#

6. (6)

   The attorney for DFCS.#

The court may allow the following parties to be present at the preliminary protective hearing, if the court finds it is in the best interests of the child:#

1. (1)

   Any relative or other persons who have demonstrated an ongoing commitment to a child with whom a child might be placed;#

2. (2)

   DFCS employees involved in the case;#

3. (3)

   An advocate as requested by an alleged dependent child’s parent, guardian, or legal custodian; and#

4. (4)

   Other persons who have knowledge of or an interest in the welfare of the child who is alleged to be dependent.#

At the commencement of a preliminary protective hearing, the court shall inform the parties of:#

1. (1)

   The contents of the complaint in terms understandable to the parties;#

2. (2)

   The nature of the proceedings in terms understandable to the parties; and#

3. (3)

   The parties’ due process rights, including the parties’ right to an attorney and to an appointed attorney if they are indigent persons, the right to call witnesses and to cross-examine all witnesses, the right to present evidence, and the right to a trial by the court on the allegations in the complaint or petition.#

If a child is not released at the preliminary protective hearing, a petition for dependency shall be made and presented to the court within five days of such hearing.#

The court may consider any evidence, including hearsay evidence, that the court finds to be relevant, reliable, and necessary to determine the needs of an alleged dependent child or to make determinations or findings required by Code Section 15-11-146.#