31.1 PURPOSE
Families in Need of Court-Ordered Services (FINCOS) is a statutorily created process established in 1993. Its purposes, as stated in §32A-3B-1, are:

• Through court intervention, to provide services for a family in need of services when voluntary services have been exhausted; and
• To recognize that many instances of truancy and running away by a child are symptomatic of a family in need of services and that in some family situations the child and parent are unable to share a residence.

The phrase “family in need of court-ordered services” is defined in §32A-3B-2 to mean:

• The child or family has refused family services; or
• CYFD has exhausted appropriate and available family services; and
• Court intervention is necessary to provide family services to the child or family; and
• One of the following circumstances exists:
  
  
  • The child is subject to compulsory school attendance and is absent from school without an authorized excuse more than ten days during a school semester.
  • The child is absent from the child’s place of residence for a time period of 12 hours or more without consent of the child’s parent, guardian or custodian. (This section of the statute was amended in 2007 to shorten the time period from 24 to 12 hours. See box in §31.3.1 below.)
  • The child refuses to return home and there is good cause to believe that the child will run away from home if forced to return to his parent, guardian, or custodian.
  • The child’s parent, guardian or custodian refuses to allow the child to return home and a petition alleging neglect of the child is not in the child’s best interests.

31.2 INITIATION OF PROCEEDINGS
The procedure to provide court-ordered services to the child or family is very similar to abuse/neglect proceedings. The case commences with CYFD filing a petition alleging the family is in need of court-ordered services. A petition may not be filed unless the children’s court attorney, after consultation with CYFD, determines and endorses upon the petition that filing is in the best interests of the child and family. §32A-3B-10.

The petition must include the following allegations, as required by §32A-3B-11(A):

• The child or the family is in need of court-ordered family services;
• The child and the family participated in or refused to participate in a plan for family services and CYFD has exhausted appropriate and available services; and
• Court intervention is necessary to assist CYFD in providing necessary services to the child and the family.

Section 32A-3B-11(B) requires that a petition alleging a child’s chronic absence from school be accompanied by an affidavit filed by a school official in accordance with §32A-3A-3, but the provision in §32A-3A-3 for affidavits by school officials was repealed in 2005.

31.3 PROTECTIVE CUSTODY

31.3.1 OBTAINING CUSTODY OF THE CHILD
Section 32A-3B-3 provides that a law enforcement officer may take a child into protective custody without a court order when the officer has reasonable grounds to believe that the child:

• Has run away from the child’s parent, guardian or custodian;
• Is without parental supervision and is suffering from illness or injury;
• Has been abandoned; or
• Is endangered by his surroundings and removal from those surroundings is necessary to ensure the child’s safety.

A child taken into protective custody may not be held involuntarily for more than two days, unless a petition to extend the protective custody is filed under the FINCOS Act or the Abuse and Neglect Act. When a petition is filed, the children’s court or district court may issue an ex parte custody order based on a sworn written statement of facts establishing probable cause that protective custody is necessary. §32A-3B-4(D) and (E).

When a child is taken into protective custody and is not released to the parent, guardian, or custodian, CYFD must provide prompt written notice to the parent, guardian or custodian of the reasons for placing the child in protective custody. This notice must be provided within twenty-four hours of the child being taken into protective custody. §32A-3B-5(A). In addition, when a child is taken into protective custody, CYFD must make a reasonable effort to determine if the child is an Indian child. §32A-3B-3(C). If the child is an Indian and is not being released, CYFD must also provide notice to the child’s tribe. §32A-3B-5(D) (added in 2005).

31.3.2 PLACE OF CUSTODY; INDIAN PLACEMENT PREFERENCES
According to §32A-3B-6, a child placed in protective custody may be placed in the following community-based shelter-care facilities:

• A licensed foster-care home or any home authorized under the law for the provision of foster care, group care or use as a protective residence;
• A facility operated by a licensed child welfare services agency;
• A facility provided for in the Children's Shelter Care Act, §§32A-9-1 through 32A-9-7; or
• In a home of a relative of the child, when the relative provides the court with a sworn statement that the relative will not return the child to the dangerous surroundings that prompted protective custody for the child.

A child in protective custody may not be held in a jail or other facility intended or used for the detention of delinquent children unless the child is also alleged or adjudicated delinquent. §32A-3B-6.

An Indian child taken into protective custody must be placed in the least restrictive setting that most closely approximates a family in which the child's special needs, if any, may be met. The Indian child must also be placed within reasonable proximity to the child's home, taking into account any special needs of the child. Preference will be given to placement with:

• A member of the Indian child's extended family;
• A foster care home licensed, approved and specified by the Indian child's tribe;
• An Indian foster care home licensed or approved by an authorized non-Indian licensing authority; or
• An institution for children approved by the Indian child's tribe or operated by an Indian organization that has a program suitable to meet the Indian child's needs.

When these placement preferences are not followed or if the Indian child is placed in an institution, a plan must be developed to ensure that the Indian child's cultural ties are protected and fostered. §32A-3B-6.1 (enacted in 2005).

31.3.3 PROTECTIVE CUSTODY HEARING
A protective custody hearing must be held within 10 days from the date the petition for protective custody is filed to determine if the child should remain with the family or be placed in CYFD’s custody pending adjudication on the petition for court-ordered services. §32A-3B-7(A). The Rules of Evidence do not apply to protective custody hearings. §32A-3B-7(F).

When the protective custody hearing is conducted, the court is required by §32A-3B-7(C) to release the child to the parent, guardian or custodian unless probable cause exists to believe one of the following:

• The child is in immediate danger from his surroundings and the child’s removal from those surroundings is necessary for the child’s safety or well-being;
• The child will be subject to injury by others if not placed in CYFD’s protective custody; or
• A parent, guardian or custodian of the child or any other person is unable or unwilling to provide adequate supervision and care for the child.

At the conclusion of the hearing, if the court determines that protective custody pending adjudication is appropriate, under §32A-3B-7(D) the court may:

• Award custody of the child to CYFD; or
• Return the child to the child’s parent, guardian or custodian, subject to conditions that will reasonably assure the safety and well-being of the child.

The court may also order the child and family to participate in an assessment and referral process. §32A-3B-7(E).

31.3.4 CHANGE IN PLACEMENT
When CYFD changes the placement of a child in protective custody, it must provide written notice of the proposed change to the parties and the child’s tribe (if the child is an Indian child) ten days before the change occurs, except in the case of emergency.  §32A-3B-9(A).

If the child’s GAL or youth attorney requests a hearing to contest the proposed change in placement, CYFD may not change the placement before the result of the hearing, unless an emergency requires changing the placement before the hearing.  §32A-3B-9(B).

When a child’s placement is changed because of an emergency and prior notice is not given, CYFD must send written notice of the change within three days of the change to the parties and to the child’s tribe if the child is an Indian child.  §32A-3B-9(C).

31.4 ADJUDICATION AND DISPOSITION

31.4.1 TIMING OF THE ADJUDICATORY HEARING
An adjudicatory hearing must be commenced within 90 days after the latest of the following dates, according to §32A-3B-12(A):

• The date that the petition is served on the respondent;
• If the trial court orders a mistrial or a new trial, the date the order is filed; or
• In the event of an appeal, the date that the mandate or order disposing of the appeal is filed in district court.  

Note that this time limit is different from abuse or neglect petitions, which must be commenced within 60 days.  See §32A-4-19.

When the adjudicatory hearing does not begin within the time limit or within any extension of the time limit, the petition must be dismissed with prejudice.  §32A-3B-12.

31.4.2 CONDUCT OF THE HEARING: CONFIDENTIALITY
Adjudicatory hearings are conducted in the same manner as adjudicatory hearings in abuse or neglect cases.  The adjudicatory hearing is closed to the general public, but the parties, their counsel and witnesses may be present.  §32A-3B-13(B).  The court may exclude a child under 14 if it determines that exclusion is in the child’s best interests.  The court may also exclude a child who is 14 or older, but only after the court makes a finding that there is a compelling reason to exclude the child and states the factual basis for the finding.  §32A-3B-13(C) (added in 2005).

In addition to the parties, counsel and witnesses, the court may admit any other person having a proper interest in the case or the work of the court to a closed hearing on the condition that they do not disclose any information that would identify the child or family involved in the proceedings.  §32A-3B-13(B). 

Anyone admitted to a closed hearing who intentionally divulges information concerning the hearing is guilty of a petty misdemeanor. §32A-3B-13(D).

31.4.3 EVIDENCE: FINDINGS REQUIRED
The court must find, on the basis of a valid admission of the allegations in the petition or on the basis of clear and convincing evidence that is competent, material and relevant, that the child is a child of a family in need of court-ordered services.  §32A-3B-14(B).

If the court finds that the child is a child of a family in need of court-ordered services, the court may proceed immediately or at a postponed hearing to disposition of the case.  If the court does not find that the child is a child of a family in need of court-ordered services, the court must dismiss the petition.  §32A-3B-14(B).  

31.4.4 DISPOSITIONAL HEARING
Prior to the dispositional hearing, the court must direct CYFD to prepare a written family services plan to correct the problems that caused the child to be adjudicated a child of a family in need of court-ordered services.  §32A-3B-15. 

At the conclusion of the dispositional hearing, the court is required to make findings in the dispositional judgment on the 12 factors listed in §32A-3B-16(A):

• The ability of the parent and child to share a residence; 
• The interaction and interrelationship of the child with the parent, siblings and any other person who may significantly affect the child's best interest; 
• The child's adjustment to home, school and community; 
• Whether the child's educational needs are being met; 
• The mental and physical health of all individuals involved; 
• The wishes of the child as to who should be the custodian; 
• The wishes of the child's parent, guardian or custodian as to the child's custody; 
• Whether there exists a relative of the child or any other individual who, after study by CYFD, is found to be qualified to receive and care for the child; 
• The availability of services recommended in the treatment plan; 
• CYFD’s efforts to work with the parent and child in the home and a description of the in-home treatment programs that CYFD has considered and rejected; 
• When the child is an Indian child, whether the placement preferences set forth in the Indian Child Welfare Act or the placement preferences of the child's tribe have been incorporated into the plan.  When placement preferences have not been incorporated, an explanation must be clearly stated and supported; and
• When the child is an Indian child, whether the family service plan provides for maintaining the Indian child's cultural ties.   

When there is an adjudication regarding a family in need of court-ordered services, the court must enter judgment and make any of the following dispositions, according to §32A-3B-16(B):

• Permit the child to remain with the child’s parent, guardian or custodian, subject to conditions and limitations the court may prescribe.
• Place the child under the protective supervision of CYFD.
• Transfer legal custody of the child to:
• CYFD;
• An agency responsible for the care of neglected or abused children; or
• The child’s non-custodial parent, if that is in the child’s best interests.
• If the evidence indicates that the child’s educational needs are not being met, the local education agency may be joined as a party and directed to:
• Assess the child’s needs within 45 days;
• Attempt to meet the child’s educational needs; and
• Document its efforts to meet the child’s educational needs.

When the child is an Indian child, the court must consider the child’s cultural needs during disposition.  When reasonable, the child must be provided access to cultural practices and traditional treatment.  §32A-3B-16(D).

The statute also contains specific provisions on the disposition of a child who has or may have a developmental disability or mental disorder.  §32A-3B-17.  The court may order CYFD to secure an assessment of the child and prepare appropriate referrals for services.  If necessary, CYFD may also initiate proceedings for involuntary placement for residential mental health or developmental disability services under the Children’s Mental Health and Developmental Disabilities (MHDD) Act.  The hearing may be held as part of the FINCOS proceeding or in a separate proceeding.  In either case, a younger child will be represented by the same GAL as in the FINCOS case, while a youth who is 14 or older may choose to be represented in the mental health proceedings by his or her attorney in the FINCOS case, or by an attorney appointed under the MHDD Act.  §32A-3B-17.

31.4.5 TIME LIMITS ON DISPOSITIONAL JUDGMENTS
The duration of a dispositional judgment varies depending on the person or entity granted legal custody.  §32A-3B-18.  For example, a judgment vesting legal custody of a child in an agency shall remain in force for an indeterminate period not exceeding two years from the date entered.  However, the court may extend this judgment for additional periods of one year if, before it expires, the court finds that the extension is necessary to safeguard the welfare of the child or the public interest.  §32A-3B-18(A) and (E). 

A judgment giving legal custody of a child to an individual other than the child’s parent shall remain in force for two years from the date entered unless terminated sooner by court order.  §32A-3B-18(B). 

A judgment vesting legal custody of a child in the child's parent or a permanent guardian remains in force for an indeterminate period from the date entered until terminated by court order or until the child is emancipated or reaches the age of majority.  §32A-3B-18(C).

On the motion of a party or the GAL, a dispositional judgment may be modified, revoked or extended at any time before it expires.  §32A-3B-18(D).

When a child reaches eighteen years of age, all FINCOS orders affecting the child terminate automatically.  The termination of these orders does not disqualify a child from eligibility for transitional services. §32A-3B-18(F).

31.5 PERIODIC JUDICIAL REVIEW
Dispositional judgments must be periodically reviewed using basically the same procedures used for abuse or neglect proceedings under the Children’s Code. §32A-3B-19. If at any judicial review the court finds that the child’s parent, guardian or custodian has not complied with the treatment plan, the court may order the child’s parent, guardian or custodian to show cause why he or she should not be held in contempt of court and subject to sanctions. The court can also direct CYFD to show cause why an abuse or neglect action has not been filed or if the local education agency has been made a party, direct the local education agency to show cause why it has not met the child’s educational needs. Dispositional orders entered after a judicial review remain in force for a period of six months. §32A-3B-19(H).

31.6 CONFIDENTIALITY
All records or information concerning a family in need of court-ordered services, including social records, diagnostic evaluations, psychiatric or psychological reports, videotapes, transcripts and audio recordings of a child's statement of abuse or medical reports, obtained as a result of a FINCOS investigation or proceeding are confidential and closed to the public. §32A-3B-22(A).  

Under §32A-3B-22(B), these records and information may be disclosed only to:

• the parties;
• court personnel;
• CASAs;
• the child's GAL or attorney;
• the attorney representing the child in an abuse or neglect action, a delinquency action or any other action, including a public defender;
• CYFD personnel;
• any local CRB;
• law enforcement officials;
• district attorneys;
• a state or tribal government social services agency of any state;
• those persons or entities of an Indian tribe specifically authorized to inspect the records pursuant to the federal Indian Child Welfare Act or its implementing regulations;  
• tribal juvenile justice system and social service representatives;
• a foster parent, under certain circumstances;
• school personnel involved with the child, if the records concern the child’s school or educational needs;
• health care or mental health professionals involved in the evaluation or treatment of the child, the child's parents, guardian or custodian or other family members;
• protection and advocacy representatives; and
• any other person or entity, by order of the court, having a legitimate interest in the case or the work of the court.

Anyone who intentionally and unlawfully releases any information or records that are closed to the public is guilty of a petty misdemeanor.  §32A-3B-22(C).

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