What To Do If Your Children Are Taken Away By ACS
(BCW or CWA)

Your Right To A Hearing Immediately
Written by Maxine A. Ketcher, J.D. & Barbara Winter, CSW
4th Printing 8/97

A Bronx Legal Services Handbook

IMPORTANT: The law changes all the time. If you want to be sure nothing has changed about this information, call Bronx Legal Services' Hotline at 718-585-6003 or 718-993-6250

Copyright 8/97, Bronx Legal Services, Inc. All Rights Reserved

IT IS NOT LEGAL for ACS to take your children away UNLESS:

1) they have an "order" (a paper signed by a judge);
OR
2) you agree that they can take your children;
OR
3) your worker or a hospital decides that there is an immediate and serious danger to the health or safety of the children (called "imminent risk").

Even though this is the law, many times this is not the way things happen. ACS still takes children away from their homes, schools and other places without a court order or their parent's permission. Other times they do not let children go home from the hospital or doctor's office.

IF THIS HAPPENS TO YOU, GO TO FAMILY COURT RIGHT AWAY. You should go to the Family Court in the borough where the children were taken or where you live and ask for a "hearing" to try to get your children back home now. Sometimes this is a "1027" hearing, but most of the time it is a "1028" hearing; don't worry about knowing the right one - the judge will know.
 
You can go to Family Court the same day the children are taken away, if the court is still open (usually until 5:00 P.M., Monday - Friday). If the court is already closed, go the next day.
 
The ACS worker is supposed to give you a paper telling you about your right to ask for a 1028 hearing, but many times that does not happen.
 
DON'T WAIT FOR THIS PAPER, OR ANYTHING ELSE FROM THE WORKER BEFORE YOU DO SOMETHING. GO TO COURT RIGHT AWAY.
YOU HAVE A RIGHT TO A HEARING even if ACS has not started a court case against you yet. The people at court may tell you that you can't have any hearing until ACS starts a case but THIS IS NOT TRUE. You can take this paper with you to show the people at court what kind of hearing you are asking for. The officers on the first floor of the court building can tell you what floor to go to, to ask for your hearing.
 
YOU HAVE A RIGHT TO A 1028 HEARING NO LATER THAN 3 DAYS AFTER YOU ASK FOR IT. YOU HAVE A RIGHT TO HAVE A LAWYER at this hearing, and for the whole court case. If you can't pay a lawyer, or you don't have one from Legal Services, the court should give ("assign") you a lawyer that same day or the next time you are in court.
 
If the judge will not do that, ask for time to get a lawyer (an "adjournment"). THEN CALL a Legal Services office to try to get help (or 212-382-6625 for a referral to a private lawyer) RIGHT AWAY.
 
To start a court case against you, ACS has to write an official form ("petition") and give it to the court. This paper has to say why ACS thinks you abused or neglected your children. ACS must file this paper NO LATER THAN 3 days after your children were taken away.
 
YOU HAVE A RIGHT TO GET A COPY of this paper and all the other papers ACS or anyone else has given to the Court about your case. Ask the judge or your lawyer to get them and give them to you.
 
DO NOT TALK WITH ANYONE about why your children were taken away unless your lawyer tells you it's ok to talk with that person. If your lawyer forgets this, you should ask.
 
If anyone, including the ACS worker, asks to talk to you about the court case, tell them you will have to ask your lawyer first, because you are now in court. BE POLITE BUT FIRM.

THE HEARING
At the hearing there will be at least 3 lawyers (one for you, one for your children, and one for ACS), the judge, the ACS worker, a court stenographer and a few court officers. The judge will call you the "respondent." There is more information about the hearing at the end of this Handbook.
 
WHAT THE JUDGE HAS TO DECIDE AT THE 1028 HEARING is if the health or safety of the children will be in immediate and serious danger if they are sent back to you right away. The children can be sent back to you even if you need some help to keep them home.
 
At the end of this hearing the judge must decide if ACS is right about any "imminent risk" to your children. Even if the judge thinks ACS is right, the judge still has to decide if the children could go home now, and be safe, if you were given help and you accept this help. This second decision is called a "reasonable efforts" determination.
 
YOU HAVE A RIGHT TO GET HELP (called "preventive services") so your children can safely come home. Families can get 19 different types of preventive services. Sometimes it is emergency help, like food or clothes, or money to buy these things.
 
Other emergency help can be day care, a homemaker, or help so you can travel to the doctor. Other services may need more time to work before your family can be together again, such as drug treatment, parenting skills training and mental health services.
 
FIRST YOU SHOULD TALK WITH YOUR LAWYER about what services you think you need to help you take care of your children so they will be safe.
 
Besides what you think, ACS, and maybe the children's lawyer (the "law guardian") will probably also have some ideas about what services they want you to accept.
 
First you should talk with your lawyer about this before you agree to anything. Your lawyer can then tell the judge the plan you have for the return of your children. Maybe your lawyer can even get everyone to agree on this plan (called "to settle" this part of your case).
 
EVEN IF YOU GET YOUR CHILDREN HOME AT THIS FIRST HEARING, THE CASE IS NOT OVER. You MUST go back to court for your fact-finding hearing or you could lose your children again. (The fact-finding hearing is when the judge will decide if you did the things that ACS says you did).

YOUR RIGHTS WHILE YOUR CHILDREN ARE NOT HOME
 
YOU HAVE A RIGHT TO KNOW the name, address and phone number of the foster care agency taking care of your children and the name(s) of the worker(s) and supervisor(s) on your case. If the ACS worker doesn't, or can't, tell you, ask your lawyer or the judge to tell them they have to find out, let you know, and do this right away. The ACS caseworker should write down this information for you the very next time you see her after your children are taken away.
 
YOU HAVE A RIGHT TO VISIT your children while they are in foster care. YOU SHOULD CALL THE FOSTER CARE WORKER RIGHT AWAY and ask for immediate, regular and unsupervised visits with your children at your home. If you have trouble making this call, ask your lawyer or the ACS worker to call for you.
 
If the judge says the children will not be sent home to you right away, ACS MUST TRY TO FIND A RELATIVE who can take care of them while your case is in court. Give your lawyer and the judge the names of relatives and friends who can care for the children while your case is in court, so your children don't have to stay with strangers.
 
If you do not get your children back at this time, visit them often (even if they are with a relative) and do what the judge tells you to do so you can get them home later; sometimes that is the fastest way of getting your children home. If the foster care agency asks you to do to certain things so you can get the children home, talk this over with your lawyer to see if it would help.

MORE ABOUT THE HEARING
Even if you are married and living with your spouse, each of you should get, or be given, your own lawyer. This happens because each of you may want to answer ACS's papers in a different way and you should be able to answer how you want without your spouse saying it is ok.
 
Both lawyers can still help each other to keep the whole family together, if that is what you and your spouse want. First, though, your lawyer should tell you, without anyone else around, how that will effect your legal rights.
 
The ACS caseworker is called the "petitioner"; that person will have their own lawyer, called an Assistant Corporation Counsel. They will stand together in the courtroom, usually to the right of you and your lawyer.
 
There will also be a lawyer for your children, called the "law guardian." This lawyer is usually from The Legal Aid Society, Juvenile Rights Division. Sometimes the law guardian also has a social worker in court. They also stand together in court, usually to the left of you and your lawyer. 
 
Once in a while there is more than one law guardian. That happens if your children don't agree with each other about what should happen in the case.
 
Other people with a "legal interest" in the case may also be at the hearing, and they can also have a lawyer there. For example, the other parent of the children, or relatives who are willing to take the children to their home may come to court.
 
Each side (called a "party") gets a chance to tell their story. ACS goes first, then you go. After that, the other parties, including the law guardian, get a turn.
 
Each lawyer will have his or her client tell their story by having people testify (usually the ACS caseworker) and by giving the judge different types of papers and things (called "documents" and "exhibits").
 
The other lawyers may attack that story by asking questions (called "cross-examination"), objecting to the papers given to the judge, and by using their own witnesses, papers and exhibits to tell their side of the story.
 
After everyone has told their story, the judge makes a decision.