NEW HAMPSHIRE DISTRICT COURT
COURT IMPROVEMENT PROJECT
IN COOPERATION WITH
THE FAMILY DIVISION
AND
N.H. PROBATE COURT

Revised April 2003

INTRODUCTION AND ACKNOWLEDGMENTS

TABLE OF CONTENTS

CHAPTER 1A - BILL F. HEARING

 

LEAD CASE: In re Bill F., 145 N.H. 267, 761 A.2d 470 (2000), parents who have not been charged with abuse or neglect must be afforded, upon request, a full hearing in district court or family division regarding their ability to obtain custody.

Consistent with In re Bill F. and RSA 169-C:19-e, the court shall schedule, as soon as possible, a Bill F. hearing when there is an open abuse/neglect case against one parent and:

(1) The other birth parent or adoptive parent does not reside with the accused/offending parent and wants to obtain physical custody of his/her child to prevent an out-of-home placement for the child or to terminate such a placement;

(2) The other parent has not been charged with abuse/neglect (hereinafter non-accused parent) of the child for whom custody has been requested;

(3) The non-accused parent requests custody orally or in a written motion to the court; and

(4) The Division for Children, Youth and Families (DCYF) or another party objects to the request for custody or the court wants to hear evidence from the non-accused parent pertaining to his/her ability to care for the child before the court rules on the request for custody.

A non-accused parent may request custody of his/her child at any point after a petition has been filed against the other parent and a Bill F. hearing must be held whenever DCYF or another party objects to this request. If, however, DCYF or another party does not object to the custody but the court wishes to explore the placement plans more fully, the court may, in its discretion, schedule a hearing to consider whether the non-accused parent is otherwise unfit to perform his/her parental duties with respect to the named child.

The following people must receive notice and should be present at a Bill F. hearing; however, failure of the non-accused parent and his/her attorney, if any, to attend the hearing shall result in dismissal of the request for custody absent a showing of good cause to reschedule the hearing:

(1) non-accused parent;

(2) attorney for non-accused parent, if any;

(3) accused/offending parent;

(4) attorney for accused/offending parent;

(5) DCYF attorney;

(6) DCYF caseworker;

(7) GAL or CASA GAL, if appointed; and

(8) others as may be determined by the court.

Pursuant to RSA 169-C:10, II(a), the court is not permitted to appoint an attorney to represent a non-accused parent unless "the parent is a household member and such independent legal representation is necessary to protect the parent's interests." In cases involving a Bill F. hearing, the non-accused parent will not be a household member and therefore will not be entitled to a court-appointed attorney.

Pursuant to In re Bill F. and RSA 169-C:19-e, a non-accused parent shall be afforded a full hearing in the district court or family division regarding the ability to obtain physical custody of his/her child. At a full hearing, the court should afford all parties the opportunity to be heard and to present and cross-examine witnesses. At the hearing, known as a Bill F. hearing, the court should consider the following:

(1) If DCYF or another party objects to a parent's request for custody, the party must demonstrate, by a preponderance of the evidence, that the parent requesting custody is otherwise unfit to perform his/her parental duties or has abused/neglected the child. The parent requesting custody shall be provided the opportunity to present evidence pertaining to his/her ability to provide for the child.

If the court does not find, by a preponderance of the evidence, that a parent is otherwise unfit to perform his/her parental duties or has abused/neglected the child, the parent shall be awarded physical custody of his/her child.

(2) If a party does not object to a parent's request for custody but the court wants to hear evidence from the parent pertaining to his/her ability to care for the child, the parent will present this evidence. The parent may also want to present evidence regarding the frequency and nature of contact, if any, between the parent and child, including visits, telephone calls and gifts.

If a parent fails to show credible evidence pertaining to his/her ability to provide for the care of the child, the request for custody will be denied.

Although both case law and RSA 169-C:19-e permit the court at a Bill F. hearing to consider whether a parent has abused/neglected the named child, best practice is for the court to consider current or recent allegations of abuse/neglect only with the support of a petition. Therefore as a practical matter, because a Bill F. hearing is held to address only physical custody and placement issues, it should focus on whether a parent is unfit to perform his/her parental duties. In making this determination, the court may consider evidence about previous allegations and/or petitions of abuse/neglect with respect to the child for whom custody has been requested and/or siblings of that child.

Pursuant to In re Bill F., the court shall make findings of fact supporting its decision, and should consider the following:

(1) How much weight it will give to existing superior court or family division orders relating to custody and visitation; and

(2) Not focus exclusively on whether granting custody to a parent is in the child's best interests, but rather should also consider whether the parent is otherwise unfit to care for his/her child or has engaged in abusive or neglectful conduct.

If a non-accused parent is awarded physical custody after a Bill F. hearing, the child would not be considered to be in an out-of-home placement. A child placed with a biological/adoptive parent is never considered to be in substitute care, even if the child and parent have had little or no contact. In such a case, legal supervision should be awarded to DCYF by the court.

When a child is removed from one parent and placed with another, the court should provide the offending parent with twelve months to correct the conditions that led to the finding of abuse or neglect. If the child during this time resides with the other biological/adoptive parent, it will be on a temporary basis.

If an offending parent is given a twelve-month opportunity to correct the conditions that led to the abuse or neglect, DCYF will be required to make reasonable efforts to reunify the child and offending parent. During this time, the court should conduct a dispositional hearing and periodic review hearings. Additionally, the court should conduct a final review hearing, twelve months from the finding of abuse or neglect. The final review hearing should be distinguished from a permanency hearing, which is only appropriate, pursuant to the Adoption and Safe Families Act of 1997 (ASFA) when a child has remained in an out-of-home placement for an extended period of time.

At a 12-month review hearing, the court should determine whether the offending parent has corrected the conditions that led to the finding of abuse or neglect, whether the child may safely be returned to that parent's custody and whether return of custody is in the child's best interest. In making this determination, the court should refer for guidance to the Standard for Return of a Child, pursuant to RSA 169-C:23, I, II and III.

If the court determines that the child should not be returned to the offending parent but should remain with the other biological/adoptive parent, the court should consider closing the case. This would permit either parent to pursue custody in the superior court or family division.

TABLE OF CONTENTS

CHAPTER 1 - GENERAL PROVISIONS

 

CHAPTER 1 - GENERAL PROVISIONS

•RSA 169-C:3,XXI, Definitions, Parent

•RSA 169-C:3, XXVI, Definitions, Relative

•In re Melissa M., 127 N.H. 710, 506 A.2d 324 (1986), the court is entitled to the best information available in deciding whether and when a child should be returned to his or her parents.

•In re Tracy M., 137 N.H. 119, 624 A.2d 963 (1993), relates to the standard of preponderance of the evidence.

•The State of New Hampshire v. Harold J. Baird, 133 N.H. 637, 581 A.2d 1313 (1990), relates to the confidentiality provision of RSA 169-C.

PROTOCOL 1 REFERENCED DAYS

Except where specifically noted, all referenced days in these protocols refer to calendar days.

Continuances are strongly discouraged and should only be granted, consistent with RSA 169-C:26, for good cause shown, such as unforeseen circumstances. Requests for continuances should not be presumed to be granted, including continuances to which all parties have assented; to the contrary, they should be presumed to be denied absent a showing of good cause.

With the exception of scheduling the initial hearing, all subsequent hearings shall be scheduled by the court, in the courtroom, with all parties in concurrence, and once scheduled, shall remain fixed except for good cause shown and due to unforeseen circumstances. Unforeseen circumstances would include such circumstances as illness or family emergency, and other events which could not possibly be foreseen at the time of scheduling the hearing.

By scheduling hearings with all parties present and committing to the date, there should be no need for continuances based upon a party's scheduling conflict. This saves unnecessary time and money in filing motions to continue, and ensures that these important cases remain on track.

RSA 169-C:14 provides that hearings, whenever possible, shall be held in rooms not used for criminal trials. In deciding whether to utilize a courtroom for such hearings, the judge should consider the availability of an electronic record, court security, accommodations of the parties and witnesses, the ability to limit access to the room during the conduct of such hearings, and other relevant considerations.

Pursuant to RSA 169-C:14, the general public shall be excluded from any hearing under RSA 169-C. Only the parties, their witnesses, counsel, and representatives of the agencies present to perform their duties shall be admitted. The court may exercise its discretion in determining whether to allow anyone other than the immediate parties, counsel, guardians ad litem, and representatives of the Division for Children, Youth and Families (DCYF) to remain in the courtroom at times other than when their presence is needed for testimony. Additionally, the court may exercise its discretion in determining whether to allow other family members, friends, or residential providers to attend the proceedings on a limited basis to provide support to the parents or child.

COMMENT

Effective May 17, 2002, a pilot project in the Grafton County Courts was established in which abuse and neglect cases may be opened to the public "absent a finding that opening the hearing or that disclosure of some or all of the evidence would be contrary to the best interests of the child or would cause unreasonable harm to one or more of the parties." The pilot project shall be in effect until June 30, 2004.

All parties, witnesses, and others present shall be advised by the court, pursuant to RSA 169-C:25 II, that it shall be unlawful to disclose information concerning the hearing that may identify a child or parent who is involved in the hearing without the permission of the court. Any person who knowingly violates this provision shall be guilty of a misdemeanor.

The court should consider issuing standard orders to counsel, the guardian ad litem (GAL) or Court Appointed Special Advocate (CASA GAL), and DCYF representatives to appear at the courthouse sufficiently in advance of the commencement of the hearing to allow for the review of court documents, conference with clients, and discussions among all parties.

To ensure that parents, custodians, and other witnesses are present during court hearings, special efforts may be required. RSA 169-C:11 provides that a subpoena may be issued requiring the production of papers and the attendance of any person whose presence is required by the child, the parents or guardian, or any other person whose presence, in the opinion of the court, is necessary. A subpoena may be issued pursuant to RSA 516 upon application of a party or upon the motion of the court.

The court must order a paternity test for any putative father, defined as the individual who is commonly regarded as a child's father. Pending the results, the court should exercise its discretion in determining what portion of the hearing, if any, the putative father will attend.

If a parent cannot be found or voluntarily absents himself/herself from any hearing, the hearing should proceed without the parent. It is, however, extremely important that putative fathers and non-accused, non-household parents participate in RSA 169-C proceedings and the court must ensure that all available efforts have been made by DCYF to locate these parents. In addition to serving as potential valuable resources for purposes of placement, if putative fathers and non-accused, non-household parents are not brought into the early stages of a case, it is likely a later termination proceeding, if there is one, will be delayed as a result. Where necessary, the court should make every effort to provide for meaningful participation by parents, including the use of conference calls and video conferencing.

Consistent with District Court Administrative Order 98-02 and the Procedure for a Record dated July 1998, and without regard to whether any party makes a specific request, all hearings conducted pursuant to RSA 169-C must be electronically recorded. Furthermore, pursuant to RSA 169-C:14-a, the court shall notify the parties that a record of the hearing is being preserved and will be made available to them at their request.

Pursuant to RSA 169-C:12, the court is not bound by the technical rules of evidence in any hearing under RSA 169-C and may admit any evidence that it considers relevant and material. Although there is a relaxed evidentiary standard in neglect and abuse proceedings under RSA 169-C:12, and even though the evidence is considered by the court as opposed to a jury, opinion evidence nevertheless must be material and relevant. In re Gina D., 138 N.H. 697, 645 A.2d 61 (1994).

The confidentiality provision of RSA 169-C cannot reasonably be interpreted to prevent relevant evidence relating to a prior action under the statute from being introduced in the criminal prosecution of a party to the earlier juvenile proceeding for a crime arising out of that prior proceeding. The State of New Hampshire v. Harold J. Baird, 133 N.H. 637, 581 A.2d 1313 (1990).

The court is entitled to the best information available in deciding whether and when a child should be returned to his or her parents. In re Melissa M., 127 N.H. 710, 506 A.2d 324 (1986). See In re Brenda H., 119 N.H. 382, 402 A.2d 169 (1979).

Pursuant to RSA 169-C:13, the petitioner in an abuse or neglect proceeding has the burden of proving the allegations by a preponderance of the evidence.

The supreme court found no constitutional error in the legislature's decision to adopt the preponderance of the evidence standard as the burden of proof in child abuse and neglect cases. In re Tracy M., 137 N.H. 119, 624 A.2d 963 (1993).

RSA 169-C:12-a provides that testimony by parents who are the subject of an abuse or neglect petition and who are alleged to have abused or neglected a child shall not be admissible against them in criminal proceedings relating to the abuse or neglect allegation. However, the court should carefully advise unrepresented parents, on the record, that any testimony they offer can be used in the course of the abuse and neglect proceedings themselves.

The court should encourage parties to fully cooperate with all service providers, either directly or through a motion to the court.

The term "parent" as used in these protocols shall be defined, pursuant to RSA 169-C:3, XXI, to mean mother, father, adoptive parent, but shall not include a parent as to whom the parent-child relationship has been terminated by judicial decree or voluntary relinquishment.

A relative shall be defined, consistent with RSA 169-C:3, XXVI, as a grandparent, brother, sister, stepparent, stepbrother, stepsister, uncle, aunt, niece, nephew and first or second cousin.

A. COURT PROCESS WHEN A CHILD IS PLACED IN AN OUT-OF-HOME PLACEMENT

A child is considered to be in an out-of-home placement if the child, as the result of an abuse or neglect petition, is removed from a biological/adoptive parent and placed in substitute care with someone other than a biological/adoptive parent of the child. In such a case, the Division for Children, Youth and Families (DCYF) will be awarded legal custody by the court.

If there is a finding of abuse or neglect and a child is placed in an out-of-home placement, the offending parent will be given twelve months to correct the conditions that led to the finding. During that time, DCYF will be required to make reasonable efforts to reunify the child and offending parent. The court will conduct a dispositional hearing and periodic review hearings.

If a child remains in an out-of-home placement for at least twelve months, the court will conduct a permanency hearing twelve months from the finding. A permanency hearing, pursuant to the Adoption and Safe Families Act of 1997 (ASFA), is designed to address permanency for children and is only appropriate when there is a finding of abuse or neglect AND a child has been in an out-of-home placement for an extended period of time.

B. COURT PROCESS WHEN A CHILD IS NOT PLACED IN AN OUT-OF-HOME PLACEMENT

A child is not considered to be in an out-of-home placement if, as the result of an abuse or neglect petition, the child is removed from one biological/adoptive parent and placed with another biological/adoptive parent. A child placed with a biological/adoptive parent is never considered to be in substitute care, even if the child and parent have had little or no contact. In such a case, legal supervision should be awarded to DCYF by the court.

When a child is removed from one parent and placed with another, the court should provide the offending parent with twelve months to correct the conditions that led to the finding of abuse or neglect. If the child during this time resides with the other biological/adoptive parent, it will be on a temporary basis.

If an offending parent is given a twelve-month opportunity to correct the conditions that led to the abuse or neglect, DCYF will be required to make reasonable efforts to reunify the child and offending parent. During this time, the court should conduct a dispositional hearing and periodic review hearings. Additionally, the court should conduct a final review hearing twelve months from the finding of abuse or neglect.

At a 12-month review hearing, the court should determine whether the offending parent has corrected the conditions that led to the finding of abuse or neglect, whether the child may safely be returned to that parent's custody and whether return of custody is in the child's best interest. In making this determination, the court should refer for guidance to the Standard for Return of a Child, pursuant to RSA 169-C:23, I, II and III.

If the court determines that the child should not be returned to the offending parent but should remain with the biological/adoptive parent, the court should consider closing the case. This would permit either parent to pursue custody in the superior court or family division.

Pursuant to RSA 169-C:16, I(d)(1) and RSA 169-C:19, II(a)(1), an order of protection may be issued setting forth conditions of behavior by a:

1) parent;

2) relative;

3) sibling;

4) guardian;

5) custodian, or

6) household member.

A household member, pursuant to RSA 169-C:3, XIV-a, means any person living with the parent, guardian, or custodian or the child from time to time or on a regular basis, who is involved occasionally or regularly with the care of the child.

If an order is made affecting such a person not before the court, it shall be served on such person by a law enforcement officer. A hearing to challenge the order may be requested in writing and shall be held within five (5) days of the request. A request for a hearing shall not stay the effect of the order.

Pursuant to RSA 169-C:21-a, a person shall be guilty of a Class A misdemeanor if such person knowingly violates a protective order issued under RSA 169-C:16, I(d)(1) or RSA 169-C:19, II(a)(1).

1) Arrest and Detention Procedure

When a person subject to a protective order under RSA 169-C:16, I(d)(1) or RSA 169-C:19, II(a)(1) violates a protective order issued or enforced under this chapter, peace officers shall arrest the defendant and ensure that the defendant is detained until arraignment. Such arrests may be made within six (6) hours without a warrant upon probable cause, whether or not the violation is committed in the presence of a peace officer.

Subsequent to an arrest, the peace officer shall seize any firearms and ammunition in the control, ownership, or possession of the defendant and any deadly weapons which may have been used, or were threatened to be used, during the violation of the protective order.

3) Enhanced Penalties

Any person convicted of knowingly violating a protective order issued under this chapter, or who has been convicted in another jurisdiction of violating a protective order enforceable under the laws of the state, who, within six (6) years of such conviction or the completion of the sentence imposed for such conviction, whichever is later, subsequently commits and is convicted of one or more offenses under this chapter may be charged with an enhanced penalty for each subsequent offense.

 

CHAPTER 2 - PETITION, SUMMONS, COURT'S APPOINTMENT OF
COUNSEL FOR PARENTS, GAL OR CASA GAL AND COUNSEL FOR CHILD

•RSA 169-C:4, Jurisdiction, Continued Jurisdiction, Modification

Pursuant to RSA 169-C:4, the district court shall have exclusive original jurisdiction over all proceedings alleging the abuse or neglect of a child, except in Grafton and Rockingham counties, where the family division's jurisdiction shall include abuse and neglect cases.

Pursuant to RSA 169-C:7,I, a 169-C proceeding is originated by any person filing a petition alleging abuse or neglect, with a judge or clerk in the judicial district in which the child is found or resides. The petition shall be verified under oath by the petitioner.

To be legally sufficient, the petition shall set forth the facts alleged to constitute abuse or neglect, and the statutory grounds upon which the petition is based. The petition shall also include, to the extent known, the following:

(1) the name, birth date, and address of the child;

(2) the name and address of any custodial parent;

(3) the name and address of any other individual or agency having custody of the child;

(4) the name of any non-custodial parent; and

(5) the name of any household member who is subject to the order. A household member, pursuant to RSA 169-C:3,XIV-a, means any person living with the parent, guardian, or custodian of the child from time to time or on a regular basis, who is involved occasionally or regularly with the care of the child.

Pursuant to District Court Rule 3.8C, amendments in matters of substance may be made on such terms as justice may require.

When a petition is filed, the clerk shall, consistent with RSA 169-C:8:

(1) issue a summons, by the end of the next business day, to all persons named in the petition and such others who may be necessary;

(2) give the petition, summons and Notice Form (Notice to Accused Parent, Notice to Non-Accused Parent Who is a Household Member or Notice to Non-Accused, Non-Household Member) to the appropriate law enforcement authority with a request to serve it personally, or if this is not possible, at the usual place of abode, upon those named in the petition within 24 hours; and

(3) give instructions to the law enforcement authority to fax or deliver to the court the return of service immediately upon completion of service. If the return of service is faxed, the original should be subsequently mailed to the court.

When neither personal service nor service at the usual place of abode is possible, courts are encouraged to order service by certified mail to the parent's last known address or publication once a week for two successive weeks in a newspaper of general circulation in the area where that person was last domiciled.

A. MANDATORY APPOINTMENT OF COUNSEL

In any case where it is alleged that a parent has abused or neglected his/her child, the clerk shall provide an affidavit of financial resources for appointment of counsel to the named parent or parents.

Upon receipt of a completed financial affidavit, the clerk shall immediately:

(1) determine eligibility for counsel;

(2) contact counsel by telephone and forward all pertinent documents and pleadings by fax; and

(3) inform the parent of counsel's name, address, and telephone number. In the first instance, the clerk should attempt to reach the parent by telephone. In all cases, the clerk should follow-up with notice to the parent by the end of that business day.

Pursuant to In re Shelby R., 148 N.H. 237, 804 A.2d 435 (2002), due process requires the appointment of counsel to a stepparent accused of abuse or neglect under RSA Chapter 169-C.

B. DISCRETIONARY APPOINTMENT OF COUNSEL

Consistent with RSA 169-C:10,II(a), the court may, in its discretion, appoint counsel for an indigent parent who is not accused of abusing or neglecting his/her child if the parent is a household member and such independent legal representation is necessary to protect that parent's interest. This protocol makes such an appointment mandatory if the parent qualifies financially for such counsel. In such cases and when instructed by a judge, the clerk shall provide an affidavit of financial resources for appointment of counsel to such person.

Upon receipt of the financial affidavit and request, the clerk shall immediately:

(1) determine eligibility for counsel;

(2) contact counsel by telephone and forward all pertinent documents and pleadings by fax; and

(3) inform the parent of counsel's name, address, and telephone number. In the first instance, the clerk should attempt to reach the parent by telephone. In all cases, the clerk should follow-up with notice to the parent by the end of that business day.

Pursuant to RSA 169-C:10, II (a), the court may not appoint an attorney to represent any other persons involved in a case brought under RSA 169-C, including, but not limited to, a non-accused, non-household parent.

Immediately upon the filing of a petition, the clerk shall appoint a guardian ad litem (GAL) or court appointed special advocate (CASA GAL). The clerk shall:

(1) determine whether a GAL or CASA GAL has been appointed for the child named in the petition for other purposes, including prior abuse or neglect cases involving this family; and, if so, shall appoint the same GAL or CASA GAL in the abuse and neglect case;

(2) telephonically notify the GAL or CASA GAL program of the appointment; and

(3) fax copies of all pertinent documents and pleadings to the GAL or CASA GAL program before the end of the business day on which the petition is filed.

RSA 169-C:10,I, requires that in every case brought pursuant to the Child Protection Act, the court shall appoint a GAL or CASA GAL. This protocol reflects the mandatory appointment of a guardian ad litem and sets forth the procedure to be followed by a clerk when making such an appointment. Clerks are strongly encouraged to appoint a CASA GAL to abuse and neglect cases whenever possible. When such an appointment is made, the court should ensure that the CASA GAL receives discovery in a timely manner.

Although RSA 169-C:15,III(a) calls for the appointment of a guardian ad litem for the child upon a finding of reasonable cause that the child is abused or neglected, this protocol requires that the guardian ad litem be appointed immediately and, if possible, be present at the preliminary hearing.

Pursuant to RSA 169-C:10,II(a), in cases involving an abused or neglected child, where the child's expressed interests conflict with the recommendation for dispositional orders of the GAL or CASA GAL, the court may appoint an attorney to represent the interests of the child.

CROSS REFERENCE: •Chapter 5, Preliminary Hearing

•24-Hour Protective Custody Hearing Order
(AOC-324-048)

The procedure for commencing a court action under the Child Protection Act (RSA 169-C) will depend upon whether the child has been removed from the home because of emergency circumstances (RSA 169-C:6 and 6-a) or remains in the home at the time the abuse and/or neglect petition is filed (RSA 169-C:8).

This Chapter is designed to outline cases that involve a child who has been removed from home and taken into protective custody by a police officer, pursuant to RSA 169-C:6, before the court is contacted.

Chapter 4 addresses cases that involve an ex parte request by DCYF or a police officer before a child is removed from the home because of emergency circumstances, pursuant to RSA-C:6-a.

Chapter 5 is designed to outline cases in which a child remains in the home at the time the petition is filed, pursuant to RSA 169-C:8.

RSA 169-C:6,I, provides that a child may be taken into protective custody by the police without the consent of the parents, if:

(a) the child is in such circumstances or surroundings as would present imminent danger to the child's health or life unless immediate action is taken; and

(b) there is not enough time to petition the court for an ex parte order.

If a police officer removes a child, pursuant to RSA 169-C:6, II(a) and (d), the police officer shall:

(1) inform the court immediately, whereupon continued protective custody pending a hearing may be ordered by the court;

(2) when the child is removed from an individual other than a parent, make every effort to inform the parent where the child has been taken; and

(3) at the beginning of the next business day, fax to the judge the officer's affidavit and/or copy of the police report.

A police officer who removes a child may, pursuant to RSA 169-C:6 II(b) and (c), take a child to a DCYF social worker or may place the child in a foster home. If a child is placed directly in a foster home, DCYF shall be notified of the incident and where the child is placed within 24 hours, unless there is a physician involved and treating the child, and the child is or will be taken to and admitted to a hospital.

Pursuant to RSA 169-C:6, III, an individual acting in good faith pursuant to this section, shall have immunity from any liability, civil or criminal, that might otherwise be incurred or imposed as a result of such removal or placement.

Although the statute permits a juvenile probation and parole officer (JPPO) to take a child into protective custody, in practice it is discouraged.

Request by Police for Court Order

When a police officer takes a child into protective custody, pursuant to RSA 169-C:6, the police officer must contact a judge immediately to request an order allowing the continued protective custody of the child. In most cases, this contact will be made by telephone and will result in a telephonic ex parte order from the court. At the beginning of the next business day, the police officer must fax to the judge a copy of the officer's affidavit and/or police report.

If a judge allows for and orders the continued protective custody of a child, the judge shall, by the beginning of the next business day:

(1) notify the clerk that a 24-hour protective custody hearing must be scheduled; and

(2) memorialize in writing the reasons given for the initial removal and why continuation in the home is contrary to the child's welfare. In most cases contact in these cases will have been made by telephone and will result in a telephonic ex parte order. This order will be reviewed at the 24-hour protective custody hearing.

If a judge makes an order for a court other than the judge's court, the written telephonic ex parte order (and the officer's affidavit and/or copy of the police report) shall be faxed to the court with jurisdiction at the judge's first opportunity on the next business day. Upon receipt, the clerk shall immediately fax a copy of the judge's order (and the officer's affidavit, and/or copy of the police report) to the DCYF district office.

When a child is taken into protective custody and the court orders the continued protective custody of the child, a hearing must be held, pursuant to RSA 169-C:6, IV, within 24 hours of taking the child into protective custody, Sundays and holidays excluded. This hearing is the 24-hour protective custody hearing.

For a child taken into protective custody on Friday evening, the 24-hour protective custody hearing should be scheduled as follows:

(1) If a child is taken into protective custody before midnight on Friday, the 24-hour protective custody hearing should be held on Saturday morning; and

(2) If a child is taken into protective custody after midnight on Friday, the 24-hour protective custody hearing should be held on Monday.

Pursuant to RSA 169-C:6, IV, notice of the 24-hour protective custody hearing shall be given to all parties designated by the petitioner or the court. The police officer shall notify the child's parents and DCYF about the hearing.

If not already done, the police officer who took a child into protective custody shall submit at the 24-hour protective custody hearing an affidavit and/or a copy of the police report supporting the reasons for removal.

If the police officer does not attend the 24-hour protective custody hearing but DCYF does, DCYF shall submit a copy of the police affidavit and/or a copy of the police report supporting the reasons for removal if not already submitted to the court.

The focus of the 24-hour protective custody hearing is limited to determining whether sufficient facts exist to c