Foster Care Reform Update

01/28/2010


IN THIS ISSUE

1. Policy Spotlight: NEW Policy Briefs and Sample Documents
2. Court Opinions: In re Interest of Marcella B. & Juan S., In re Interest of T.T., In re Adoption of Corbin J., In re Interest of Chance J., In re Interest of Damon H. and Alexandria J., In re Interest of Manuel C.
3. Legislative Update: 2010 Child Welfare Bills; 2009 Carryover Bills; Federal Health Care Reforms
4. Announcements: Recently released reports; Upcoming Trainings; Appleseed Blog

POLICY SPOTLIGHT

New Policy Briefs

The Foster Care Reform Legal Resource Center is pleased to release two new Policy Briefs:

  • “Reasonable Efforts in Nebraska” outlines the statutory and case law on reasonable efforts and is designed to provide you with resources to raise this issue as appropriate in your individual cases.

  • “Civil Rights and Immigration Issues in the Nebraska Foster Care System” outlines legal issues at the intersection of immigration and child welfare law and is intended to assist you in addressing immigration-related civil rights violations in your individual juvenile cases. It also provides an overview of the fundamental constitutional rights implicated in the child welfare and immigration context.

Both Policy Briefs are available on our Juvenile Document Bank at http://neappleseed.org/lrcforms/index.php. The Juvenile Document Bank is password protected and only listserv members have access. Please contact Sarah Helvey for your login and password.

New Sample Documents

We have also recently updated the Juvenile Document Bank with new pleadings. The Juvenile Document Banks now includes a sample Office of Civil Rights complaint, sample § 1983 civil rights pleadings in a child welfare case, and motions regarding reasonable efforts.

Our Mission:

Nebraska Appleseed’s Legal Resource Center seeks to assist you in raising systemic issues in your individual cases. Please contact us if we can be of assistance in cases raising these or other issues.

COURT OPINIONS

In re Interest of Marcella B. & Juan S., A-09-382, 18 Neb. App. 153 (2009) http://www.supremecourt.ne.gov/opinions/2009/november/nov24/a09-382.pdf
Decided November 24, 2009

In this case, the guardian ad litem (GAL) made a motion to have one of the children’s testimony be heard in chambers during an adjudication hearing. In support of the motion, a therapist who had evaluated the child testified that having the child testify in front of her mother would harm the child. The juvenile court overruled the motion and the GAL appealed. The Court of Appeals held that that children do not have a “substantial” right to testify in chambers and therefore the juvenile court’s overruling of the motion for in-chambers testimony was not a final order and as such the appellate court did not have jurisdiction to hear the appeal.

The Court of Appeals explained that for an appellate court to acquire jurisdiction of an appeal, there must be a final order entered by the court from which the appeal is taken. The Court stated that overruling the motion for in-chambers testimony can be a final order only if it is an order affecting a substantial right made in a special proceeding. The Court found that Nebraska law is clearly established that a proceeding before a juve¬nile court is a special proceeding for appellate purposes. The question before the Court, therefore, was whether the child had a right to testify in chambers, instead of in the presence of her mother, and if so, was such right a “substantial” right. The Court ruled that there was no precedent recognizing a constitutional right for a victim to testify against the accused. Thus, the Court concluded that the child had no constitutional right to testify in juvenile proceedings. The Court of Appeals acknowledged that the juvenile court has a responsibility to protect the best interest of the child, but noted that safeguards are in place to do so. The Court of Appeals specifically noted that a procedure exists for a juvenile court to hear a motion for in-chambers testimony. However, the Court of Appeals concluded that an interlocutory appeal of that motion causes delays of the proceedings which is contrary to the child’s best interests. The Court of Appeals also rejected the GAL’s arguments based on the collateral order doctrine and based on independent grounds for appeal.

In re Interest of T.T., A-09-244, 18 Neb. App. 176 (2009) http://www.supremecourt.ne.gov/opinions/2009/december/dec8/a09-244.pdf
Decided December 8, 2009

This appeal involved a 17 year old youth who was left by his parents at a hospital under a previ¬ous version of Nebraska’s “Safe Haven” law. In a series of orders, the juvenile court restricted the parents from publicly disclosing information about the youth’s medical treatment and other medical information. The parents appealed the so-called “gag order” and also an order to submit to a pretreatment assessment based on the fact that the permanency objective was independent living and not reunification. The Court of Appeals held that the gag order was a prior restraint on the parents’ right of free speech and vacated the order. As to the pretreatment assessment, the Court of Appeals concluded that the order was reasonably related to the basis for the adjudication.

By an order filed by the juve¬nile court on November 26, 2008, the youth was adjudicated to be within the meaning of § 43-247(3)(a) and, in that same order, the parents were ordered to not discuss past and ongoing medical treatment of the youth with the public. This was in response to an article that had been published in the Wall Street Journal about the youth and Nebraska’s Safe Haven law as it existed at the time. Subsequently, the juvenile court filed an order on January 2, 2009, seeking to clarify the previous order, which forbade any further public disclosure by the parents of the youth’s private medical information. In a disposition order filed on February 3, 2009, the juve¬nile court stated that the primary permanency plan for the youth was “Independent Living” with an alternative plan of “Self Sufficiency.” Once again the juvenile court ordered no public disclosure by the parents of the youth’s private medical information, among other information. The parents, who wanted to participate in policy discussions, including a legislative task force, on the Safe Haven law, appealed and alleged that the juvenile court erred in violating their rights to free speech in the gag order. The parents also alleged that the juvenile court erred in ordering them to submit to a pretreatment assessment.

The Court of Appeals first considered whether the first gag order, of January 2, 2009, was a final, appealable order. This was relevant because the parents only appealed the February 3, 2009 order and the state argued in a motion to dismiss that the parents should have appealed the earlier order and that the later order was a continuing order that did not extend the period of time with which to appeal. The parents argued that the January 2 order was merely a temporary order. In analyzing the January 2 order, the Court of Appeals looked at (1) the object of the order and its importance and (2) the timeframe over which the order can reasonably be expected to operate. The Court concluded that while the January 2, 2009 order affected a matter of significance so as to be appealable, the timeframe during which it was intended to operate was only 5 days, until the scheduled dispositional hearing on January 7. Thus, the January 2 order was a nonfinal order because of the brief timeframe during which it was intended to operate. Accordingly, the Court found that the gag order of January 2 was a temporary order that did not affect a substantial right and that the gag order found in the dispositional order of February 3 was a final, appealable order that was to remain in effect until the next hearing that the court scheduled, for August 7. Therefore, the Court had jurisdic¬tion to consider the merits of the February 3 gag order and overruled the motion to dismiss.

In analyzing the constitutionality of the gag order, the Court found that the gag order contained within the juvenile court’s dispo¬sitional order of February 3, 2009, was clearly a prior restraint on the parents’ right of free speech. The Court explained that governmental action constitutes a prior restraint when it is directed to suppressing speech because of its con¬tent before the speech is communicated. While prior restraints are not unconstitutional per se, they bear a heavy presumption against constitutional validity. Considering the applicable legal principles regarding prior restraints on speech, the Court held that a restraint on speech against disclosure to the public of information about a juvenile because it is in the juvenile’s “best interest,” as the juvenile court found, is an insufficiently justified prior restraint on speech. The Court concluded that the evidence was simply insufficient, absent conjecture and speculation, to satisfy the state’s heavy burden to justify this prior restraint on free speech and to overcome the heavy pre¬sumption of unconstitutionality of a prior restraint on speech. That is, the standard to evaluate a prior restraint on speech, even in the context of the child welfare system, is not best interests but a balancing of imminent harm with the need for free expression. Although a therapist had testified that the youth had been angry and embarrassed by the Wall Street Journal article, the Court found no evidence proving imminent harm to the youth of a mag¬nitude that justifies a prior restraint on free speech. Therefore, the Court vacated that portion of the juvenile court’s order of February 3, 2009, preventing the parents from disclosing information about the youth.

The Court also found that the juvenile court’s order requiring the parents to participate in a pretreatment assessment was reasonable, appropriate, and supported by the evidence, even though the permanency goal was not reunification. The Court noted that a rehabilitation plan must “tend to correct, eliminate, or ameliorate the situation or condition on which the adjudication has been obtained.” The Court concluded that in this case the adjudication was based on the youth being “in a situation dangerous to [his life] or injurious to [his] health or morals” in that his parents invoked the existing Safe Haven law. The Court stated that the pretreatment assessment was reasonably related to the plan because the evidence indicated that the parents still sought a relationship with the youth and the therapist testified that the assessment would help with therapeutic goals.

In re Adoption of Corbin J., S-09-355, 278 Neb. 1057 (2009) http://www.supremecourt.ne.gov/opinions/2009/december/dec4/s09-355.pdf
Decided December 4, 2009

This case arose from the petition to adopt Corbin, a minor child, filed by Ilja M., the child’s stepfather. Corbin was born out of wedlock to Rusti and John, whom are named as Corbin’s mother and father on Corbin’s birth certificate issued by the State of Colorado. Neither party disputed that John is Corbin’s biological father. The issue was whether a putative biological father who had established a familial relationship with his child is constitutionally required to comply with certain father registry and adoption statutes found at Neb. Rev. Stat. §§ 43-104(3), 43-104.04, and 43-104.22(7) to preserve his rights in a subsequent adoption. The county court determined that the consent of the putative biological father, John, to the adoption of Corbin, was not required because John failed to com¬ply with the registry statutes. On appeal, the Nebraska Supreme Court vacated the adoption decree, concluding that the county court erred in allowing the adoption to proceed because John had not consented.

On appeal, the Supreme Court explained that an adjudicated father is an individual determined to be the father by a court of competent jurisdiction. The Court found that the only court order entered addressing John’s paternity was a temporary order in the district court for Keith County, requiring John to pay child support and to provide medical insurance and designating visitation. However, the action in which the temporary order was entered was ultimately dismissed for lack of prosecution. This temporary order was not a final court-ordered determination that John was Corbin’s father, therefore the Court found that John was not adjudicated as Corbin’s father. Since John was not adjudicated as Corbin’s father, the issue presented was whether in order to proceed with the adoption in the absence of an allegation of abandonment, the parties needed the consent of John, a putative father, whom the parties acknowledge to be the biological father of the child and who had established a familial relationship with the child.

The Court concluded that for an adoption to proceed, the consent of the biological father who has established a familial rela¬tionship with his child is required unless, under § 43-104(2), the party seeking adoption has established that the biologi¬cal parent: (a) has relinquished the child for adoption by a written instrument, (b) has abandoned the child for at least six months next preceding the filing of the adoption petition, (c) has been deprived of his or her parental rights to such child by the order of any court of competent jurisdiction, or (d) is incapable of consenting. Because there was no evidence of the foregoing, the Supreme Court ruled that the county court erred when it allowed the adoption of Corbin to proceed without John’s consent due to John’s failure to file certain notices. The Court also concluded that the adoption statutes at §§ 43-104(3), 43-104.04, and 43-104.22(7) requiring notice to preserve his rights in adoption were unconstitutionally applied to John because he had established a relationship with the child. The grant of summary judgment in favor of Ilja and Rusti was reversed. Because the Court concluded that the county court erred in granting summary judgment in favor of Ilja and Rusti, the Court vacated the subsequent adoption decree.

In re Interest of Chance J., S-08-962, 279 Neb. 81 (2009) http://www.supremecourt.ne.gov/opinions/2009/december/dec31/s08-962.pdf
Decided December 31, 2009

The Nebraska Supreme Court reversed the Court of Appeals and upheld the juvenile court’s termination of parental rights of a father based on abandonment where the father was married to the mother at the time of the child’s birth but did not believe the child was his based on the child’s physical appearance. The Supreme Court also found that reasonable efforts were not required to be shown based on the grounds for termination of parental rights and that it was in the child’s best interest to terminate parental rights.

Andrew and Miranda, the mother, were married in Nebraska, moved to Kentucky, and subsequently separated. Less than a year after their separation, Miranda told Andrew that she was pregnant. Andrew stated that when Chance was born in April 2006, “the baby was white, had blue eyes, and red hair.” Andrew is African American. Miranda indicated that Andrew may have not been the father, so Andrew did not believe that Chance was his son and made no further effort to try and determine whether he was the father.

In June 2007, Chance was removed from Miranda’s home and placed in foster care, and eventually, Miranda’s parental rights were terminated. In February 2008, the State filed a supplemental petition alleging abandonment by Andrew for reason of no contact or support in the previous six months. In April 2008, genetic testing indicated that Andrew was father of Chance. The hearing on the supplemental petition was held in August 2008 and Andrew’s parental rights were terminated. A divided panel of the Nebraska Court of Appeals reversed the judgment of the juvenile court, holding that the State failed to present sufficient evidence to support a finding by clear and convincing evidence that Andrew’s parental rights should be terminated based on abandonment. The Court of Appeals reasoned that because Andrew did not actually believe he was the child’s father, he did not abandon him, and further determined that reasonable reuni¬fication efforts were required. In the State’s petition for further review, it argued: (1) the State proved by clear and convincing evi¬dence that Andrew abandoned Chance; (2) reasonable efforts to reunify the family were not required; and (3) termination of Andrew’s parental rights was in Chance’s best interests.

The Nebraska Supreme Court found that the evidence showed a complete abandonment of parental rights and responsibilities on the part of Andrew. The Court determined that the record clearly showed that Andrew had no contact with Chance during the crucial six month time period after the juvenile petition was filed. Andrew had not provided any financial support and had not provided any cards, gifts, or letters to Chance. Regarding Andrew’s argument that he had just cause or excuse because prior to genetic test¬ing, he believed that he was not Chance’s father, the Court noted that even at the time of the hearing on Andrew’s parental rights, Miranda and Andrew were still legally married. A child born during a marriage is presumed to be the biological child of the husband until proved otherwise or decreed otherwise by the court. The Court concluded that paternal uncertainty based on physical appearance of a child or suspicions of infidelity is not just cause or excuse for abandoning a child born into wedlock, especially when there are ample means to verify one’s paternity. Only after the State filed a petition to terminate his rights, nearly three years after Chance was born, did Andrew attempt to take any responsibility for Chance. The Court stated that “[t]he obligations of parenthood cannot be set aside that easily, based on nothing more than mere physical appearance or unconfirmed suspicions.” Thus, the Court found that Andrew abandoned Chance in that he intentionally withheld from Chance without just cause or excuse, his presence, care, love, protection, main¬tenance, and opportunity for the display of parental affection.

The Court also found that reasonable efforts to reunify Andrew and Chance were not required because such efforts are required under the juvenile code only when termination is sought under § 43-292(6), not when termination is based on other grounds. Here, termination was not sought under § 43-292(6); it was sought under § 43-292(1), (2). Therefore, after a proper finding of abandonment, it was not necessary for the State to make reasonable efforts to reunify this father and child.

Finally, on the question of the best interests of Chance, the Court found that Andrew had forfeited his parental rights relating to Chance and that termination of Andrew’s parental rights was in the best interests of Chance. The record clearly showed that Andrew’s only contact with Chance, ever, prior to the filing of the petition was immediately following his birth in April 2006. Andrew had not provided any financial support and had not provided any cards, gifts, or letters to Chance. Chance also had several special needs, including develop¬mental delays and evidence presented indi¬cated that Chance’s current foster mother was able to address those needs and that Chance had improved in her care. By contrast, Andrew was not aware that Chance had special needs until the hearing. The Court concluded that Andrew forfeited his parental rights concern¬ing Chance and upheld the termination of Andrew’s parental rights.

In re Interest of Damion H. & Alexandria J., A-09-656 http://www.supremecourt.ne.gov/opinions/2010/january/jan5/a09-656.pdf
Decided January 5, 2010 (not designated for permanent publication)

In this case, two minor children, Alexandria and Damion, were removed from the home of their parents, Tara and Mark, after school officials observed multiple bruises on Damion and Damion reported that Mark had beat him with his hands and a plastic hanger. The juvenile court entered an order placing the children in the immediate custody of the DHHS. Subsequently, a petition to terminate parental rights was filed and granted on the basis of Neb. Rev. Stat. § 43-292(2), (6), and (7) and that it would be in the children’s best interests to terminate Tara’s and Mark’s parental rights. Both parents appealed. The Court of Appeals upheld the juvenile court’s judgment and found that Tara chose to continue her relationship with Mark despite the danger he presented to the children, and that she had failed to make significant progress toward reunification during the 24 months the case had been pending. The Court also found no evidence of any substantial changes in Mark’s life since Damion was removed from Mark’s home. The Court ruled that it would be in Damion’s best interests to terminate Mark’s parental rights due to the length of time that the case had been pending and due to Mark’s inability to obtain or maintain a sober lifestyle.

In re Interest of Manuel C., A-09-767
http://www.supremecourt.ne.gov/opinions/2010/january/jan5/a09-767.pdf
Decided January 5, 2010 (not designated for permanent publication)

In this case, the State appealed from a juvenile court order dismissing the State’s petition after finding that the State failed to prove by a preponderance of the evidence that Manuel came within the meaning of Neb. Rev. Stat. § 43-247(3)(a). Manuel got into an argument with his father Jesus on April 13, 2009 at home. Manuel left the house but his father caught up with him and picked up a cable, much like an extension cord, off of the ground and hit Manuel four or five times. A responding police officer placed Manuel in protective custody and later testified that Manuel was at risk for harm at the time he was taken into protective custody. An assessment worker for the DHHS also testified that there was a risk of harm if Manuel was allowed to remain or return to the care, custody, and control of his father.

The juvenile court, in finding that the State did not prove the allegations in the petition, relied on the decision in In re Interest of D.S., 232 Neb. 345 (1989), in which an adjudication was overturned where it was based on an isolated incident in which the mother hit the child with a miniature replica of a baseball bat. In the instant case, although the juvenile court acknowledged that the incident was serious, the juvenile court noted that Manuel had testified that his father had not previously struck him physically and dismissed the state’s petition to adjudicate. On appeal, the Nebraska Court of Appeals noted that the State offered 18 pictures of the injuries inflicted upon Manuel by his father that showed that Manuel’s father hit Manuel multiple times with an electrical cord which resulted in serious bruising to his arm, back, and head. The Court also noted that it was not necessary for the State to prove that the child had actually suffered physical harm, only that there is a definite risk of future harm. In this case, the appellate court concluded that the State had shown by a preponderance of evidence that Manuel had already suffered physical harm as a result of his father’s actions and also that Manuel was at risk of future harm. The Court concluded that the juvenile court erred in finding that the State failed to prove that Manuel came within the meaning of § 43-247(3)(a) and reversed the judgment of the juvenile court and remanded the cause with directions to find that Manuel is a child within the meaning of § 43-247(3)(a).

Legislative Action

2010 Child Welfare Bills

LB 728 Adopt the Exploited Children's Civil Remedy Act and redefine a term with respect to pleas. Introduced by Sen. Lautenbaugh.

LB 800 Provide methods of early intervention for children at risk. Introduced by Sen. Ashford.

LB 901 Change child custody determination provisions. Introduced by Sen. Wightman.

LB 923 Change provisions relating to sealing of juvenile criminal justice records. Introduced by Sen. Ashford.

LB 936 Authorize court-ordered conditions for juvenile court dispositions. Introduced by Sen. Flood.

LB 939 Change support order enforcement provisions. Introduced by Sen. Stuthman.

LB 971 Change provisions relating to care and placement of neglected children and children in foster care. Introduced by Sen. Campbell.

LB 973 Change provisions relating to the central register of child protection cases and authorize a hearing. Introduced by Sen. Coash.

LB 1005 Create the Substance Abuse Treatment Grant Program under the Native American Public Health Act. Introduced by Sen. Karpisek.

Click here for a chart of 2010 Child Welfare Legislation.

2009 Child Welfare Carryover Bills

LB 82 Require notification of change in a juvenile’s case manager under the Nebraska Juvenile Code. Introduced by Sen. Howard.

LB 147 Provide name-change court orders to update the central register of child protection cases and the central registry of sex offenders. Introduced by Sen. Pirsch.

LB 226 Change the age of majority to 18 years of age for certain purposes. Introduced by Sen. Rogert.

LB 247 Require accreditation of the Division of Child and Family Services of the Department of Health and Human Services. Introduced by Sen. Dubas.

LB 253 Adopt a new Nebraska juvenile Code and change child abuse reporting and registry, child relinquishment, and Foster Care Review Act provisions. Introduced by Sen. Ashford.

LB 307 Change sentencing requirements with respect to certain minors. Introduced by Sen. Council.

LB 423 Change child custody provisions and the Parenting Act. Introduced by Sen. Cornett.

LB 519 Provide for rate increases for behavioral health care providers and create the Provider Reimbursement Commission. Introduced by Sen. McGill.

Click here for a chart of 2009 Child Welfare Carryover Legislation.

Federal Health Care Reform

The Senate health care reform bill, the Patient Protection and Affordable Care Act (H.R. 3590), was introduced on November 18, 2009 and passed by the Senate on December 24, 2009. The bill would ensure that every young person who ages out of the foster care system will be able to stay on Medicaid until the age of 26 starting in 2014. Almost 30,000 young people age out of the foster care system every year, having never been adopted or reunified with their birth parents. Guaranteeing access to quality health care will greatly assist them with their transition to adulthood. The House of Representatives’ health care reform bill, the Affordable Health Care for America Act (H.R. 3962), which was passed on November 7, 2009, does not contain this provision.

Note: This is not an exhaustive list of legislation or cases. The legislation and cases in this update are selected by Appleseed as those raising systemic issues in the child welfare system.

ANNOUNCEMENTS

Several Nebraska-specific child welfare reports have been recently released that may be of interest to practitioners:

Click here to read the National Association of Counsel for Children’s “Evaluation of the Guardian Ad Litem System in Nebraska”

Click here to read the National Juvenile Defender Center’s “Juvenile Legal Defense: A Report on Access to Counsel and Quality of Representation for Children in Nebraska”

Click here to read Voices for Children’s Kids Count in Nebraska 2009 Report

Click here to read the Foster Care Review Board’s 2008 Annual Report

Click here to read the January 2010 Nebraska Lawyer article by Sarah Helvey and the Hon. Patrick Runge entitled “Send Lawyers, Experts, and Active Efforts: Recent Developments in Nebraska Case Law Interpreting the Indian Child Welfare Act.”

Upcoming Trainings

Click here for information on the Through the Eyes of the Child Initiative’s 2010 Spring Lecture Series.

Appleseed Blog

Appleseed recently launched a blog where you can read daily updates about our work to positively impact low-income families, immigrants, children in foster care, and access to health care. Child welfare posts generally appear every Wednesday. Stop by and check it out! Read, comment, and share your own stories with us at: http://www.neappleseed.org/blog

We invite you to contact us if Appleseed can be of any assistance on systemic issues that arise in your practice. I may be reached at shelvey@neappleseed.org or (402) 438-8853, ext. 106.

Sarah Helvey
Program Director / Staff Attorney
Child Welfare System Accountability Program

For more information about the Child Welfare System Accountability Project, please visit: http://www.NeAppleseed.org/children

For more information about Nebraska Appleseed, please visit: http://www.NeAppleseed.org

To make an online donation and help us make a difference, please visit: http://www.NeAppleseed.org/contribute

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