If DCF is planning to file an abuse or neglect petition, or has already filed one, and determines that your child is in immediate physical danger from his surroundings, it will seize the child on a 96-hour hold. That can be done under the authority of a DCF program supervisor. DCF will then normally show up at your home, supported by several police officers, and take the child or children. In some cases, DCF takes the child right from the school and notifies you after the fact.
During the next four days, DCF almost always files a Motion for an Order of Temporary Custody (OTC). The judge usually grants the motion. Thus the child will not be returned to you until you get a further court order.
You are then contesting two matters in Juvenile Court: the OTC and the neglect petition. Even if the OTC is vacated, the neglect petition remains.
Getting your child back after removal can be a lengthy and
difficult process, and is best undertaken with the aid of an
Our goal is to make sure that the process of reunification does not get sidetracked, so that you can be reunited with your child as soon as possible.
IMMEDIATE PHYSICAL DANGER
The obvious purpose of an OTC is to protect a child who is in immediate physical danger. For example, suppose that DCF has credible evidence that the parents are running heroin parties while young children are present. Or that the parent intentionally burned the child with a cigarette. Or that the parents went on vacation and left the child with a known molester. Under these circumstances, everyone would agree that the child should be seized immediately.
It is similar to a temporary restraining order (TRO) in domestic matters. The woman files a sworn affidavit that her husband or boy friend is physically abusing her. The Judge issues a TRO. Of course, it might not be true, so the other party gets to come to Court within ten days and tell his side of the story. Meantime, since the sworn affidavit is serious and appears to be credible, the temporary order is granted.
Similarly, an OTC is temporary. The child is seized based upon a sworn affidavit, but you get to come to court and tell your side of the story.
The reality, however, is a little different; for several reasons.
PROBLEMS WITH OTC’S
It is safe to say that most Americans never heard of OTC’s until the Texas polygamy case. In that case, Texas took nearly 500 children away from their community on flimsy evidence, which turned out to have been fabricated. There was no pretext of a true investigation.
The real motive of the Texas authorities was to gather evidence against a group whose religious beliefs it opposed. Here, the extensive publicity succeeded in getting the children returned. Other kids have not been so fortunate. And even here, the trauma inflicted on the kids by a SWAT-like raid against their families cannot be known with certainty.
Good news: We notice that, lately, Judges are more reluctant to grant OTC motions filed by DCF. The reason seems to be that DCF has cried wolf too often, and Judges are getting suspicious. OTC’s are supposed to be filed in genuine cases of imminent danger to children, not simply whenever DCF has concerns. Nevertheless, the OTC remains a potent weapon in DCF’s arsenal.
It is possible, however, to request a delay of the 10-day hearing. For example, you may ask for an extra 2-4 weeks or so to get your case ready. The problem is that you have no guarantee that the Judge will grant the delay; but often he will.
It is best to discuss specific details with your attorney. OTC’s are unpleasant things, to say the least; and our office uses its best efforts to help clients.
Unexplained fractures present an almost-automatic case for OTC’s. The child has a serious injury, the parents are unable to explain it, and a state-contracted pediatrician specializing in child abuse can always be found to supply damaging testimony.
The parents are in a serious bind. They are up against evidence that they can almost never contradict. It is especially serious if the parents have any prior DCF history whatsoever.
Please see our article: The Problem of Unexplained Fractures and Head Injuries.
If your child is taken on an OTC, it is usually desirable to see that the child is placed with relatives. See: Relatives Seeking Placement.
OTC is a serious business. The odds are stacked against you.
Do not, under any circumstances, argue with the social worker. That will only get you written up as uncooperative or threatening, and will make it worse.
People understandably believe that if they can convince the social worker, all will be well. DCF does not operate that way. A supervisor makes the decision, and the field social worker communicates it and takes the heat.
Many people try to defend themselves against DCF. That seldom makes sense; but in an OTC, it makes no sense at all.