18 Miss. Code. R. 6-1-A-II-XIII
In addition, workers must recognize other specific constitutional, legal rights and entitlements of children and families in child maltreatment cases and practice within these boundaries:
The court system accords both parents and children certain legal rights and entitlements, depending on the type of proceeding in which they are involved, including:
* The right to family integrity;
* The right to notice of the proceedings;
* The right to a hearing;
* The right to counsel;
* The right to a jury trial;
* The CAPTA requirement of a GAL or court-appointed special advocate;
* The entitlement to reasonable efforts.
Parents and children must not only be informed of their rights, but they also must understand the protections those rights afford them. Court representatives and workers shall educate families about their rights and help them feel empowered in an otherwise intimidating process.
The legal framework regarding the parent-child relationship balances the rights and responsibilities among parent, child, and State, as guided by Federal statutes. It has long been recognized that parents have a fundamental liberty interest, protected by the Constitution, to raise their children as they choose. This parent-child relationship grants certain rights, duties, and obligations to both parent and child, including the responsibility of the parent to protect the child's safety and well-being. If a parent, however, is unable or unwilling to meet this responsibility, the State has the power and authority to take action to protect a child from significant harm.
CAPTA is one of the primary pieces of Federal legislation guiding casework and it supports the right of family integrity through community-based grants that aim to strengthen families. Of course, this right is not absolute. A compelling State interest, such as the need to protect children from significant harm, will justify infringement on the right to family integrity.
Parents or other custodians of a child have the right to "notice" of any petition filed regarding that child and to be notified of any hearing regarding that petition. The right to notice encompasses the right to be formally given the petition, which also must state what the parent has done or not done that makes court involvement necessary. The right to notice is a fundamental element of the constitutional right to due process. Due process specifies the right to be present in court, representation by an attorney, and procedures that are speedy, fair, and impartial. It applies to both parents, whether or not they are living together. Orders entered without notice are subject to being withdrawn.
Putative fathers (those identified as the biological parent, but whose paternity has not been legally established) also must be identified in the petition and be served. Their relationship to the child needs to be determined as early in the proceeding as possible by formal acknowledgment or by genetic testing. If paternity is established, these fathers or their families may become financial and placement resources for the child.
Petitions may be filed and emergency ex parte orders may be entered without advance notice to parents. Ex parte is defined as being on behalf of or involving only one party to a legal matter and in the absence of and usually without notice to the other party. For example, an emergency removal of a child from an unsafe home situation may be done through an ex parte order. Action must be taken, however, to serve the parents with the petition and order as quickly as possible. Foster parents and kinship care providers also must be notified of pending court hearings and be given an opportunity to be heard during these proceedings.
A fundamental element of due process is the right to a hearing on the merits of a petition, including the right to cross-examine or to question any witness called by DFCS, by the other parent, or on behalf of the child, as well as the right to present evidence on one's own behalf
Parents have a right to retain counsel or seek legal aid or pro bono services in child maltreatment cases.
Children who allegedly have been maltreated are entitled to a Guardian ad litem (GAL), who is an independent advocate for the children's best interest. States must comply with this requirement in order to satisfy CAPTA State Grant funding requirements.
The GAL role may be fulfilled by the appointment of an attorney, a volunteer who is not an attorney, or both. Volunteers also may be called Court-Appointed Special Advocates (CASA). The volunteers often are professionals trained in other disciplines, such as nursing, psychology, or education. Responsibilities of the GAL or CASA include:
* Meeting the child;
* Exploring the facts of the case;
* Obtaining medical, educational, and other records;
* Determining the child's perspective and needs;
* Identifying appropriate services and resources;
* Monitoring the progress of the case;
* Promoting the child's interests.
Where both an attorney and a GAL are appointed, it is with the expectation that they will function as a team in performing those tasks and in advocating for the child, as well as in making the child's own views known to the court. These advocates can be valuable sources of knowledge and information and important allies when they and DFCS worker concur on how the case should be resolved.
MISS. CODE ANN. § 43-21-121(4) states "The court may appoint either a suitable attorney or a suitable layman as guardian ad litem. In cases where the court appoints a layman as guardian ad litem, the court shall also appoint an attorney to represent the child". See MISS. CODE ANN. § 43-21-121 for a complete description of the duties of a Guardian ad litem.
Except in certain aggravated circumstances, parents and children are entitled under the Adoption Assistance and Child Welfare Act ( P.L. 96-272) and Adoption and Safe Families Act (ASFA) (P.L. 105-89) to have State agencies make reasonable efforts to keep them together, or if a child has been removed from the family, to make reasonable efforts to reunify the family. ASFA also states that children who are not going to be reunited with their families are entitled to reasonable efforts by State agencies or departments to secure a permanent placement for them.
Federal law further requires that judges decide at each critical stage of an abuse or neglect case whether the DFCS has complied with the reasonable efforts requirement. The obligation to make reasonable efforts applies to DFCS workers alone, not to the parents, any other individuals, or service providers.
18 Miss. Code. R. 6-1-A-II-XIII