A. A child may be taken into immediate custody and placed in shelter care pursuant to an emergency removal order in cases in which the child is alleged to have been abused or neglected. Such order may be issued ex parte by the court upon a petition supported by an affidavit or by sworn testimony in person before the judge or intake officer which establishes that:
1. The child would be subjected to an imminent threat to life or health to the extent that severe or irremediable injury would be likely to result if the child were returned to or left in the custody of his parents, guardian, legal custodian or other person standing in loco parentis pending a final hearing on the petition.
2. Reasonable efforts have been made to prevent removal of the child from his home and there are no alternatives less drastic than removal of the child from his home which could reasonably protect the child's life or health pending a final hearing on the petition. The alternatives less drastic than removal may include but not be limited to the provision of medical, educational, psychiatric, psychological, homemaking or other similar services to the child or family or the issuance of a preliminary protective order pursuant to § 16.1-253.
If the petitioner fails to obtain an emergency removal order within four hours of taking custody of the child, the affidavit or sworn testimony before the judge or intake officer shall state the reasons therefor.
When a child is removed from his home and there is no reasonable opportunity to provide preventive services, reasonable efforts to prevent removal shall be deemed to have been made.
The petitioner shall not be required by the court to make reasonable efforts to prevent removal of the child from his home if the court finds that (i) the residual parental rights of the parent regarding a sibling of the child have previously been involuntarily terminated; (ii) the parent has been convicted of an offense under the laws of the Commonwealth or a substantially similar law of any other state, the United States, or any foreign jurisdiction that constitutes murder or voluntary manslaughter, or a felony attempt, conspiracy, or solicitation to commit any such offense, if the victim of the offense was a child of the parent, a child with whom the parent resided at the time such offense occurred, or the other parent of the child; (iii) the parent has been convicted of an offense under the laws of the Commonwealth or a substantially similar law of any other state, the United States, or any foreign jurisdiction that constitutes felony assault resulting in serious bodily injury or felony bodily wounding resulting in serious bodily injury or felony sexual assault, if the victim of the offense was a child of the parent or a child with whom the parent resided at the time of such offense; or (iv) on the basis of clear and convincing evidence, the parent has subjected any child to aggravated circumstances or abandoned a child under circumstances that would justify the termination of residual parental rights pursuant to subsection D of § 16.1-283.
As used in this section:
"Aggravated circumstances" means torture, chronic or severe abuse, or chronic or severe sexual abuse, if the victim of such conduct was a child of the parent or child with whom the parent resided at the time such conduct occurred, including the failure to protect such a child from such conduct, which conduct or failure to protect (i) evinces a wanton or depraved indifference to human life or (ii) has resulted in the death of such a child or in serious bodily injury to such a child.
"Chronic abuse" or "chronic sexual abuse" means recurring acts of physical abuse that place the child's health, safety and well-being at risk.
"Serious bodily injury" means bodily injury that involves substantial risk of death, extreme physical pain, protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ or mental faculty.
"Severe abuse" or "severe sexual abuse" may include an act or omission that occurred only once but otherwise meets the definition of "aggravated circumstances."
B. Whenever a child is taken into immediate custody pursuant to an emergency removal order, a hearing shall be held in accordance with § 16.1-252 as soon as practicable, but in no event later than five business days after the removal of the child.
C. In the emergency removal order the court shall give consideration to temporary placement of the child with a person with a legitimate interest under the supervision of the local department of social services, until such time as the hearing in accordance with § 16.1-252 is held.
D. The local department of social services having "legal custody" of a child as defined in § 16.1-228 (i) shall not be required to comply with the requirements of this section in order to redetermine where and with whom the child shall live, notwithstanding that the child had been placed with a natural parent.
1977, c. 559; 1984, c. 499; 1985, c. 584; 1986, c. 308; 1990, c. 769; 2000, c. 385; 2003, c. 508; 2017, c. 190; 2019, c. 434.
Notes of Decisions
Christopher Farrell v. Warren Cnty. Dep't of Soc. Servs., 719 S.E.2d 329 (Va. Ct. App. 2012).
· cites it 10× “Code § 16.1-251 allows a juvenile and domestic relations district court (JDR) to enter an emergency order allowing the Department of Social Services (Department) to remove a child from his custodian’s or parent’s custody.”
Marrison v. Fairfax Cnty. Dep't of Fam. Servs., 717 S.E.2d 146 (Va. Ct. App. 2011).
· cites it 40× “The J & DR court also opined that Code § 16.1-251 imposes only a “procedural requirement, not a substantive right” and that the Marrisons had failed to show that they suffered any prejudice as a result of the hearing being held on February 18, *66 2010.”
Dawn Farrell v. Warren Cnty. Dep't of Soc. Servs., 719 S.E.2d 313 (Va. Ct. App. 2012).
· cites it 18× “Code § 16.1-251 allows a juvenile and domestic relations district court (JDR) to enter an emergency order allowing the Department of Social Services (Department) to remove a child from his custodian’s or parent’s custody.”
Lynchburg Div. of Soc. Servs. v. Cook, 666 S.E.2d 361 (Va. 2008).
· cites it 6× “In an affidavit in support of an emergency removal petition under Code § 16.1-251, Parks stated that most of the seized images were pornographic and depicted participants under the age of 18.”
Keel v. Keel, 303 S.E.2d 917 (Va. 1983).
· cites it 4× “NOTES [*] As best we can determine, when the trial court expressed concern about the existence of conditions harmful to the children as the basis for changing custody, it had in mind Code § 16.1-251, § 16.1-252, or § 16.1-253.”
Parker v. Austin, 105 F. Supp. 3d 592 (W.D. Va. 2015).
· cites it 8× “” Va.Code § 16.1-251. The DSS defendants based that decision on information provided to them by a physician and another trained DSS worker and their own observations of the children.”
Rader v. Montgomery Cnty. Dep't of Soc. Servs., 365 S.E.2d 234 (Va. Ct. App. 1988).
· cites it 2× “The juvenile court did not exercise its jurisdiction for emergency removal of the children pursuant to Code §§ 16.1-251 to 253. Under these statutes, the parents would have been given specific notice in writing of a subsequent hearing on the merits by a petition stating the…”
Pfoltzer v. Cnty. of Fairfax, 775 F. Supp. 874 (E.D. Va. 1991).
· cites it 3× “See Va.Code § 16.1-251 (permitting Emergency Removal Order); § 16.”
Richmond Dep't of Soc. Servs. v. Carter, 507 S.E.2d 87 (Va. Ct. App. 1998).
· cites it 2× “See Code § 16.1-251. Between 1994 and 1996, the Department filed in the juvenile and domestic relations district court three foster care service plans pursuant to Code § 16.”
Jordan ex rel. Jordan v. Jackson, 15 F.3d 333 (4th Cir. 1994).
· cites it 2× “See Va.Code §§ 16.1-251(A) & -252(A); Juvenile and Domestic Relations District Courts: Only Judge, and Not Intake Officer, May Issue Emergency Removal Order, 1979-80 Op.”
Robinette v. Keene, 347 S.E.2d 156 (Va. Ct. App. 1986).
· cites it 2× “The proceedings with respect to S_ apparently were ex parte and pursuant to Code § 16.1-251. 2 The juvenile and domestic relations district court held a hearing on January 15, 1985, and apparently continued in effect the previous disposition of S_and J_, that is, transfer of…”
— Va. Code Ann. § 16.1-251(A) — 8 cases
Christopher Farrell v. Warren Cnty. Dep't of Soc. Servs., 719 S.E.2d 329 (Va. Ct. App. 2012).
“Code § 16.1-251 allows a juvenile and domestic relations district court (JDR) to enter an emergency order allowing the Department of Social Services (Department) to remove a child from his custodian’s or parent’s custody.”
Dawn Farrell v. Warren Cnty. Dep't of Soc. Servs., 719 S.E.2d 313 (Va. Ct. App. 2012).
“Code § 16.1-251 allows a juvenile and domestic relations district court (JDR) to enter an emergency order allowing the Department of Social Services (Department) to remove a child from his custodian’s or parent’s custody.”
Lynchburg Div. of Soc. Servs. v. Cook, 666 S.E.2d 361 (Va. 2008).
“In an affidavit in support of an emergency removal petition under Code § 16.1-251, Parks stated that most of the seized images were pornographic and depicted participants under the age of 18.”
Jordan ex rel. Jordan v. Jackson, 15 F.3d 333 (4th Cir. 1994).
“See Va.Code §§ 16.1-251(A) & -252(A); Juvenile and Domestic Relations District Courts: Only Judge, and Not Intake Officer, May Issue Emergency Removal Order, 1979-80 Op.”
— Va. Code Ann. § 16.1-251(A)(1) — 13 cases
Christopher Farrell v. Warren Cnty. Dep't of Soc. Servs., 719 S.E.2d 329 (Va. Ct. App. 2012).
“Code § 16.1-251 allows a juvenile and domestic relations district court (JDR) to enter an emergency order allowing the Department of Social Services (Department) to remove a child from his custodian’s or parent’s custody.”
Dawn Farrell v. Warren Cnty. Dep't of Soc. Servs., 719 S.E.2d 313 (Va. Ct. App. 2012).
“Code § 16.1-251 allows a juvenile and domestic relations district court (JDR) to enter an emergency order allowing the Department of Social Services (Department) to remove a child from his custodian’s or parent’s custody.”
— Va. Code Ann. § 16.1-251(A)(2) — 5 cases
— Va. Code Ann. § 16.1-251(A)(l) — 1 case
Parker v. Austin, 105 F. Supp. 3d 592 (W.D. Va. 2015).
“” Va.Code § 16.1-251. The DSS defendants based that decision on information provided to them by a physician and another trained DSS worker and their own observations of the children.”
— Va. Code Ann. § 16.1-251(B) — 7 cases
Marrison v. Fairfax Cnty. Dep't of Fam. Servs., 717 S.E.2d 146 (Va. Ct. App. 2011).
“The J & DR court also opined that Code § 16.1-251 imposes only a “procedural requirement, not a substantive right” and that the Marrisons had failed to show that they suffered any prejudice as a result of the hearing being held on February 18, *66 2010.”
Christopher Farrell v. Warren Cnty. Dep't of Soc. Servs., 719 S.E.2d 329 (Va. Ct. App. 2012).
“Code § 16.1-251 allows a juvenile and domestic relations district court (JDR) to enter an emergency order allowing the Department of Social Services (Department) to remove a child from his custodian’s or parent’s custody.”
Dawn Farrell v. Warren Cnty. Dep't of Soc. Servs., 719 S.E.2d 313 (Va. Ct. App. 2012).
“Code § 16.1-251 allows a juvenile and domestic relations district court (JDR) to enter an emergency order allowing the Department of Social Services (Department) to remove a child from his custodian’s or parent’s custody.”
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