The Department of Services for Children, Youth and Their Families ("DSCYF") serves the families of Delaware in a myriad of ways.  "Its primary responsibility is to provide and manage a range of services for children who have experienced abandonment, abuse, adjudication, mental illness, neglect, or substance abuse." In the course of those services, the Division of Family Services ("DFS"), a division of DSCYF, investigates allegations of child dependency, neglect and abuse. In an emergency situation DFS may file a petition in the Family Court seeking immediate custody of a child. If warranted, emergency relief may be granted on an ex parte basis – without an opportunity for the child's parents to be heard. However, if an emergency order is granted then a hearing must be held within ten (10) days. That hearing is commonly referred to as a Preliminary Protective Hearing or PPH. At the PPH, the Family Court is charged with determining "whether the evidence demonstrates that probable cause exists to believe that a child continues to be in actual physical, mental, or emotional danger or there is a substantial imminent risk thereof." The nature of that standard was the subject of a recent appeal to the Delaware Supreme Court.

The Family Court Preliminary Protective Hearing

The facts and procedural history of the case captioned Department of Services for Children, Youth and Their Families v. Fowler et al., No. 681, 2014 (Aug. 26, 20150), are set forth in detail in the decision and only a brief synopsis is included here. In short, the Family Court granted the emergency petition filed by DSCYF seeking custody of A.F.  Thereafter, the Court conducted a PPH at which the Department, Ms. Fowler and Mr. Tower appeared. Also present was the Court Appointed Special Advocate ("CASA") who represented the child's interests. DSCYF presented testimony in support of its request to continue custody of A.F. Ms. Fowler and Mr. Tower testified and opposed the DSCYF's request. The CASA also opposed DSCYF's request to continue custody with the Department. After hearing the evidence the Judge concluded that the Department did not establish probable cause to believe that [the child] was dependent, neglected, or abused in the care of Ms. Fowler and Mr. Tower.

The Appeal

The Department appealed the Family Court's decision alleging that Family Court misapplied the PPH probable cause standard. DSCYF argued that it presented sufficient evidence to establish probable cause and its evidence at the hearing should have been accepted by the Family Court as conclusive. Id. at 7. It was DSCYF's contention that the Family Court may not "compare and contrast the evidence presented by the parties at a PPH, but must confine its analysis to the Department's knowledge and belief." Id. at 8. Ms. Fowler responded arguing, inter alia, that it is a fundamental due process right of a parent to contest the taking of his or her child by DSCYF and that the PPH is designed for this purpose. Therefore, Ms. Folwer argued, the Judge must consider all the evidence at the PPH.

In its decision the Supreme Court agreed with Ms. Fowler's contention that during a PPH parents can respond to the allegations raised by the Department and the Family Court may assess their credibility. The opinion, authored by Justice Collins J. Seitz, Jr., concluded that "[b]efore reaching a probable cause determination, the court must weigh all the evidence presented at the hearing, including the hearsay presented by the Department and the parents, consider the totality of the circumstances, and determine whether the State has met its burden to prove probable cause." Id. at 11.

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