DSS Emergency Removal: The 72-Hour Probable Cause Hearing
When children are removed from an emergency basis from their parents/guardians the Court is required to hold a probable cause hearing within 72 hours of removal where DSS has to prove that it had probable cause at the time of removal and that probable cause still exists at the time of the hearing such that it is necessary to keep custody of the children.
This hearing comes very fast and in most instances, parents attend the hearing without a lawyer. I don't know if this is because they can't afford representation or they just don't know what their rights are.
In the event you are unable to find an attorney to go the 72-hour Probable Cause hearing with you, these are a few quick tips that will hopefully help prepare you a little bit:
The 72-hour probable cause hearing is similar to a preliminary hearing in criminal court. That means DSS's burden of proof is extremely low to establish the existence of “probable cause”. You do not get to testify at a probable cause hearing. DSS will present testimony by way of their investigator or by the law enforcement officer of the circumstances that led to the removal of your children by DSS. Additionally, DSS will present evidence about whether probable cause exists to keep the children in foster care based on whatever post-removal investigation that has been completed.
Even though you cannot testify, you are given the opportunity to cross-examine any witness DSS puts up. You also have the right to submit affidavits on your behalf to the family court. This is a substitute for your testimony. But, remember that anything you say can be used against you so depending on the circumstances of your case, you. may not want to share information with the Court or DSS at this time.
If you are indigent, you will have an opportunity at this hearing to request the appointment of legal counsel to assist you in this case and you will be notified of the date of a merits hearing where you will be able to contest the removal of your children further.