Foster Care Reform Update

03/17/2008

In this issue:

  • Policy Spotlight: Legislature Passes and Governor Signs Broad Safe Haven Bill and Child Abuse Disclosure Bill
  • Nebraska Court Opinions: In re Interest of Justyce
  • Legislative Actions
  • Upcoming Events and Conferences

POLICY SPOTLIGHT

Legislature Passes and Governor Signs Broad Safe Haven Bill and Child Abuse Disclosure Bill

Safe Haven Bill

On February 7, 2008, the Nebraska Legislature passed LB 157 with a 41-1-7 vote. The Governor signed the bill into law on February 13, 2008. The bill, as originally proposed by Sen. Stuthman, would have allowed parents to leave an infant child 72 hours old or younger at a fire house or hospital under certain conditions, without facing criminal prosecution for abandonment. However, the compromise ultimately reached by the Legislature resulted in a much broader bill than was originally proposed. The new law allows any person (not just a parent) to leave a child (no age limitation is specified) in the custody of an employee on duty at a hospital licensed by the State of Nebraska without being prosecuted for any crime based solely on the act of leaving the child in this manner. The new law provides that “[t]he hospital shall promptly contact appropriate authorities to take custody of the child.”

Procedures for how cases will proceed thereafter are not entirely clear. The original bill required the Nebraska Department of Health and Human Services (NDHHS) to place a child abandoned under the act with a potential adoptive parent as soon as possible and to file a petition to terminate the parental rights of a parent who leaves a child under this section. However, the new law is silent as to subsequent placement and termination, and discussions at the legislature suggested that termination of parental rights should not be automatic in this situation.

Nebraska was the last state in the country to adopt a safe haven law. At the same time, NDHHS officials believe Nebraska’s safe haven law may be the broadest in the country.

To read the full text of the slip law, http://uniweb.legislature.ne.gov/FloorDocs/Current/PDF/Slip/LB157.pdf

Child Abuse Disclosure Bill

On March 4, 2008, the Nebraska Legislature passed LB 782 with a 47-0-2 vote. The Governor signed the bill into law on March 10, 2008. The bill, introduced by Sen. Howard at the request of Governor Heineman, permits the NDHHS Director of Children and Family Services (Todd Landry) or the CEO (Chris Petersen) to release information in child abuse cases under limited circumstances.

Under the new law, HHS has discretion to release information “regarding child abuse or neglect and the investigation of and any services related to the child abuse and neglect if the chief executive officer or director determines that such disclosure is not contrary to the best interests of the child, the child’s siblings, or other children in the household…” and any one of six factors is present. These factors include, among other things, the information to be disclosed is related to a child fatality or near fatality, the information to be disclosed is related to a case that has already been made public by sources outside the department, when a child in the custody of HHS is missing from a placement (HHS may then release the name and physical description of the child), and when the alleged perpetrator of child abuse or neglect has been charged with a crime related to the report of abuse/neglect.

In terms of what information may be disclosed, the bill provides, “[i]nformation that may be disclosed includes, but is not limited to, child placement, whether in-home or out-of-home, terms of contact, hearing dates, the reason for removal from parents or placement, the number of placements and type, permanency objectives, court-ordered services or other services provided by the division, and status of the court process. The following information shall not be released by the chief executive officer or director absent a court order: Date of birth, social security number, protected health information, the name of the person who made the report of child abuse or neglect pursuant to section 28-711, and names of foster parents, unless the foster parent is the alleged perpetrator.”

An amendment added an emergency clause providing that the act takes effect when passed and approved.

To read the full text of the slip law, http://uniweb.legislature.ne.gov/FloorDocs/Current/PDF/Slip/LB782.pdf

Click here to read Appleseed’s testimony on LB 782

As always, we welcome your “frontline” input and encourage discussion of all things child welfare. If you have thoughts on this issue or related issues, please post a message to the listserv by emailing to childwelfare@binary.net or contact us at (402) 438-8853, ext. 106.

NEBRASKA COURT OPINIONS

In re Interest of Justyce J., A-07-878
http://www.supremecourt.ne.gov/opinions/2008/february/feb26/a07-878.pdf
(Decided February 26, 2008 – Not Designated for Permanent Publication)

Dawn S. appealed the lower court’s order which terminated her parental rights. Both she and Brian J., Justyce’s biological father, had their parental rights terminated by the lower court after they brought Justyce to the hospital and he was found to have broken ribs and two subdural hematomas. Both parents offered possible explanations for the injuries, but the State provided medical witnesses as to the possibility for child abuse to have been the cause of the injuries. On appeal, Dawn S. claimed that the court erred in its finding by clear and convincing evidence to terminate her parental rights and in its finding that such termination was in the best interests of Justyce. She also argued that the court erred in allowing a police officer to testify as to his opinion concerning whether terminating her parental rights would be in the child’s best interests. The Nebraska Court of Appeals affirmed, finding that there was sufficient evidence to support the termination of the mother’s parental rights. The court explained that “[t]his court has previously held that a finding of abuse or neglect pursuant to § 43-292(2) may be supported where the record shows (1) a parent’s control over the child during the period when the abuse or neglect occurred and (2) multiple injuries or other serious impairment of health have occurred which ordinarily would not occur in the absence of abuse or neglect.” The court stated that the evidence demonstrated that Dawn and Brian were the sole caregivers of Justyce during the time when his injuries occurred. As well, the record demonstrated that Justyce suffered injuries that do not occur in the absence of neglect or abuse. As to the testimony of the police officer, the court concluded that, even without considering the officer’s testimony, there was still sufficient evidence that terminating the mother’s parental rights was in the child’s best interest and affirmed the lower court’s order.

On November 14, 2006, a petition was filed by the State which alleged that Justyce, by reason of the faults or habits of his mother, came within § 43-247(3)(a). The State later filed an amended petition which alleged that it was by the faults or habits of both the mother and the father. In a second amended petition, the State alleged that Justyce was observed by medical personnel to have broken ribs and two cerebral bleeds indicative of child abuse and that Justyce was in his parent’s care at the time of the injuries. The parents had not provided a plausible explanation for the injuries. The second amended petition also alleged that Dawn’s and Brian’s parental rights should be terminated. At the hearings held on the second amended petition, it was shown that Dawn and Brian had taken Justyce to two separate medical facilities. Later doctors reviewed the x-rays and determined Justyce had multiple rib fractures. Additional tests were done, one of which showed that Justyce has rickets, a metabolic bone disease. The parents were questioned by police and offered various explanations for the injuries. At the hearings, the State offered medical witnesses to testify as to the injuries, rib fractures and subdural hematoma, Justyce’s diagnose of rickets, and the potential for child abuse to have been the cause of the injuries. Hoppe, a protection and safety worker, and Chubb, a police officer with the Omaha Police Department, also testified. “Hoppe testified that she was unable to identify any kind of rehabilitation plan or safety services that would allow Justyce to go home because she had no idea who caused his injuries; no idea to whom to provide services; no idea what the basis of those services would be; and no idea what issues needed to be addressed.” Over the mother’s objection, the police officer testified as to his beliefs that the child would be at risk for additional harm if returned to the parents because the officer could not rule out either parent as the one who injured Justyce. The mother called two witnesses who testified on the mother’s behalf. The juvenile court found that termination of the parents’ rights was justified by clear and convincing evidence and that such termination was in the best interests of Justyce. Only the mother appealed.

The Nebraska Court of Appeals began by stating that it found upon review that there was clear and convincing evidence to support the lower court’s finding that the mother’s parental rights should be terminated under §43-292(2). The court explained that “[t]his court has previously held that a finding of abuse or neglect pursuant to §43-292(2) may be supported where the record shows (1) a parent’s control over the child during the period when the abuse or neglect occurred and (2) multiple injuries or other serious impairment of health have occurred which ordinarily would not occur in the absence of abuse or neglect.” The court stated that the evidence demonstrated that Dawn and Brian were the sole caregivers of Justyce during the time when his injuries occurred. As well, the record demonstrated that Justyce suffered injuries that do not occur in the absence of neglect or abuse. Even though the mother suggested that there was evidence the son’s injuries occurred not as a result of intentional trauma, but because of his diagnosis of rickets, the Court explained that the State had presented a large amount of evidence which disputed that analysis. As to whether the lower court erred in its finding of the best interests of Justyce, the Court found that there was sufficient evidence to support the lower court’s finding concerning best interests. The mother argued that neither Hoppe nor the police officer had a sufficient basis to provide their opinion concerning Justyce’s best interests. The Court went through the testimony of Hoppe and the mother’s witness and then reiterated that the court may, “…when the evidence is in conflict,…give weight to the fact that the lower court observed the witnesses and accepted one version of the facts over the other.” As to the police officer, the Court explained that even assuming, though the court did not decide the issue, the court erred in allowing the testimony, the allowance of the testimony did not constitute reversible error. “The improper admission of evidence by the trial court in a parental rights termination proceeding does not, in and of itself, constitute reversible error, for, as long as the appellant properly objected at trial, the court will not consider any such evidence in its de novo review of the record.” Even not considering the officer’s opinion, the record established that the child was severely injured at a time when only his parents were his caregivers. “Given the severity of Justyce’s injuries, and the fact that Dawn failed to protect Justyce from those injuries, clear and convincing evidence shows that termination of Dawn’s parental rights is in Justyce’s best interests.” The court then affirmed the lower court’s order, which terminated the mother’s parental rights to Justyce.

LEGISLATIVE ACTIONS

2008 Child Welfare Bills

LB 782 – Allow disclosure of child abuse and neglect information. Introduced by Sen. Howard.

LB 783 – Provide an income tax credit for adoption expenses as prescribed. Introduced by Sen. Howard.

LB 1025 – Change domestic assault sentencing and protection order provisions. Introduced by Sen. McGill.

LB 1029 – Provide for contract rates for foster care services. Introduced by Sen. Fulton.

LB 1070 – Provide for a child placement resources form for a child placed with the Department of Health and Human Services. Introduced by Sen. Dubas.

LB 1078 – Provide name change court orders to child abuse and sex offender registries. Introduced by Sen. Pirsch.

LB 1085 – Change Parenting Act and other domestic relations provisions. Introduced by Sen. Flood.

LB 1159 – Change provisions relating to truancy and parenting plans, authorize citations issued to parents, and provide for mediation. Introduced by Sen. Ashford.

LB 1160 – Change Nebraska Juvenile Code jurisdiction determination provisions and provide for facilitated conferencing. Introduced by Sen. Ashford.

2007 Child Welfare Carryover Bills Passed by the Legislature and Approved by the Governor

LB 92 – Change provisions relating to foreign national minors. Introduced by Sen. Cornett.

LB 157 – Prohibit prosecution for leaving a child at a hospital. Introduced by Sen. Stuthman.

Other Recent Action on 2007 Child Welfare Carryover Bills

LB 6 – Provide Nebraska Safe Haven Act. Introduced by Sen. Pahls.

LB 38 – Change number of separate juvenile court judges. Introduced by Sen. Hudkins.

LB 68 – Create the Office of Guardian ad Litem Services. Introduced by Sen. Hudkins.

LB 535 – Create the juvenile legal services division of the Commission on Public Advocacy and eliminate a council. Introduced by Sen. Schimek.

Click here for a chart of child welfare carryover bills from the 2007 session.

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.

UPCOMING EVENTS AND CONFERENCES

Advanced GAL Training – The Through the Eyes of the Child Initiative will be holding a Spring Lecture Series in April and May. Dr. Roger Lott will be presenting “Visitation for Children Placed Out-of-Home: Goals, Objectives, and Strategies” on April 23, 2008 from 1:00-4:00 p.m. at the Holiday Inn Express I-80 in Grand Island. Hon. Doug Johnson will be presenting “Helping Babies from the Bench” on May 9, 2008 from 9:00 a.m. – 4:00 p.m. at Western Nebraska Community College in Sidney. Dr. Barbara Sturgis will be presenting “Getting the Most out of Psychological Evaluations in the Child Welfare Court System” on May 13, 2008 from 11:00 a.m. – 2:00 p.m. at the Police Headquarters Conference Room in Lincoln. For more information, visit http://www.throughtheeyes.org

The Rocky Mountain Child Advocacy Training Institute, conducted by the National Association of Counsel for Children (NACC), the Rocky Mountain Children’s Law Center, and the National Institute for Trial Advocacy (NITA), will be held this year May 19-23, 2008 in Denver, CO. For more information, visit http://www.naccchildlaw.org/training/RMCATI.html.

Other Announcements

Nebraska Appleseed is currently hiring a part-time Staff Attorney for the Child Welfare System Accountability Program. Click here for the full Job Announcement.

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

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

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

Sign-up to receive other Nebraska Appleseed news

Contribute to Appleseed

Donate Now

 

Resources

Past Foster Care Reform Updates

 

Publications

Contact

© 2007 Nebraska Appleseed | 941 'O' Street, Suite 920 Lincoln, NE 68508 | Tel. 402.438.8853 Fax. 402.438.0263 |