Foster Care Reform Update

04/23/2008

In this issue:

  • Introduction: Welcome LaShawn Young!
  • Policy Spotlight: Legislative Session Recap
  • Nebraska Court Opinions: In the Interest of A.T. and T.P. (Iowa Ct. App.) and In re Interest of Brittany M. et al. (Neb. Ct. App.)
  • Legislative Actions: 2008 Child Welfare Interim Studies Introduced & Final Actions on 2008 Child Welfare Bills
  • Upcoming Events and Conferences

INTRODUCTION

I wanted to kick off this month’s Foster Care Reform Update by announcing the addition of Appleseed’s newest Child Welfare Staff Attorney, LaShawn Young! LaShawn comes to us with over 12 years of experience. For the last 10 years, she has been in private practice with the Omaha firm of Young & Young. The focus of LaShawn’s practice has been in the areas of juvenile and probate law and she has extensive experience representing children and parents in neglect and delinquency matters as both defense counsel and as a guardian ad litem. She has also served as a hearing officer for the Nebraska Equal Opportunities Commission and for the Nebraska Department of Motor Vehicles. LaShawn is currently the Board President for the Douglas County CASA program and has served on the Board since 2001. We are most excited to have LaShawn join us!

LaShawn will be primarily involved with the Foster Care Reform Legal Resource Center in developing resources (e.g., trainings, policy briefs) and providing assistance (e.g., research, co-counsel, development of amicus briefs) in cases raising systemic issues. She will also be identifying areas of needed law and policy reform and developing and implementing strategies, including litigation and public policy advocacy, to bring about positive policy change in the child welfare system.

As always, we invite you to contact us if Appleseed can be of any assistance on systemic issues that arise in your practice. You can reach LaShawn at lyoung@neappleseed.org or (402) 438-8853, ext. 110.

Sarah Helvey
Program Director
Child Welfare System Accountability Program

POLICY SPOTLIGHT

Legislative Session Recap

Introduction

The 100th Legislature, second session adjourned sine die on April 18, 2008. Here’s a recap:
This session, Nebraska Appleseed monitored 9 child welfare bills from this session as well as 14 carryover bills from last session. Of these bills, 5 advanced out of committee, and 4 became law. For a summary of two of these new laws - the Safe Haven bill (LB 157) and Child Abuse Disclosure bill (LB 782) - click here to read the March Policy Spotlight. The third child welfare bill to become law this session, LB 92, made a slight language change to the existing statute related to providing notice and cooperation with the appropriate consulate in cases involving foreign national minors and “minors having multiple nationalities” rather than “minors holding dual citizenship.” In addition, LB 1160 which, among other things, provides for confidentiality and privilege in “facilitated conferences” (family group conferencing and pre-hearing conferences) was attached to the Judiciary’s Omnibus bill, which was passed by the Legislature and approved by the Governor on April 16, 2008.

Juvenile Justice and GAL Study

This session the legislature also approved a measure to transfer $250,000 from the Commission on Public Advocacy to UNL’s Public Policy Center to hire a national expert to do a study of Nebraska’s juvenile justice system and GAL systems. The assessment shall include, among other things, gathering information about the structure and funding mechanisms for juvenile legal defense and guardian ad litem representation, examining issues related to the timing of appointment of counsel and GALs, supervision of attorneys, adequacy of juvenile court facilities, compensation of attorneys, coordination between juvenile defense counsel and GALs, and time to permanency and time in court, especially when a GAL is appointed. This study was proposed as an amendment (AM 2394) to the budget bill (LB 961). The amendment was approved on March 19, 2008 and the budget bill was subsequently passed by the Legislature and signed into law by the Governor on April 2, 2008. Click here for the full text of this amendment.

Relative Placement Bill

LB 1070, a bill drafted and promoted by Nebraska Appleseed, was intended to bring greater accountability and a more uniform practice to HHS’s efforts to identify and investigate relatives as potential placements for children removed from the home due to abuse or neglect. The primary objective of this bill was to insure that HHS identifies relatives and determines whether they could be a good placement for children early in the process, to prevent possible placement disruptions that can occur when relatives are pursued late in a case. HHS has agreed to implement the goals of this bill on an administrative level without the need for a legislative change at this time. We look forward to continuing to work with the Department on this issue. Look for more information on this bill and the issue of relative placement in the May Policy Spotlight.

Interim Studies

Interim studies are an opportunity for legislative committees to consider issues between legislative sessions. This session, five interim studies related to child welfare were introduced. These proposals include an interim study to review services available to at-risk children ages 0-5, to reexamine the effects of changing the age of majority from 19 to 18, to examine language access in health care and human services, to examine the feasibility of HHS contracting with other social services agencies for the provision of foster care services (this is a follow up to LB 1029), and to prioritize and examine funding of HHS programs and services. For a listing of child welfare interim studies introduced, see “Nebraska Legislative Actions” below.

Conclusion

Overall, despite the relatively small number of child welfare bills that advanced or were signed into law this session, the issues raised during committee hearings educated senators about the need for reform of Nebraska’s child welfare system. Educating senators about child welfare issues is a vital part of moving child welfare reform forward in Nebraska. Thank you for your interest and involvement in the process!

For a listing of child welfare bills and final actions taken on them during the 2008 session, see “Nebraska Legislative Actions” below.

For more information, visit http://www.nebraskalegislature.gov

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

Iowa

In the Interest of A.T. and T.P., 2007 Iowa App. Lexis 1329
http://www.judicial.state.ia.us/court_of_appeals/Recent_Opinions/20071228/7-525.pdf
(Filed December 28, 2007)

The Iowa Court of Appeals held that when a GAL recommends a disposition that conflicts with the juvenile’s wishes, the juvenile court may, under Iowa statutes, appoint independent counsel to represent the child where the child is of sufficient age and maturity to make an informed decision about a potential termination of a child’s relationship with his or her parents. On appeal by the mother challenging the juvenile court’s refusal to appoint a separate attorney for her child, the appellate court found that the juvenile court abused its discretion in refusing to appoint a separate attorney for the child and remanded.

Nebraska

In re Interest of Brittany M. et al., A-07-719
http://www.supremecourt.ne.gov/opinions/2008/april/apr1/a07-719.pdf
(Decided April 1, 2008 – Not Designated for Permanent Publication)

The parents, Teresa S. and Shane S., appealed and cross-appealed the order terminating their parental rights to their three children. They claimed that the lower court erred when it overruled their motion in limine, which concerned evidence of allegations by their children of sexual abuse, and the finding that terminating their parental rights was in the best interests of the children. The mother also appealed challenging the statutory grounds of termination. The Nebraska Court of Appeals affirmed, finding that the lower court did not err in overruling the motion in limine and that there was sufficient evidence to support the termination of the parents’ parental rights. The Court of Appeals determined that evidence of sexual abuse by the parent, of which there was insufficient evidence to support the adjudication, may be admitted at termination because such evidence is relevant to the best interests of the child.

On October 30, 2003, a petition was filed by the State which alleged that the children fell within §43-247(3)(a) “because Teresa and Shane failed to provide them with safe, stable, and independent housing; Shane engaged in inappropriate sexual contact with Joseph; and Teresa failed to protect Joseph from inappropriate sexual contact with Shane.” A motion for temporary custody was also filed. At the adjudication hearing, the court found that the children were within §43-247(3)(a). The Court determined that insufficient evidence was presented regarding the inappropriate sexual contact and failure to protect. The State filed a supplemental petition on April 29, 2004, which again failed to sufficiently prove the allegations of inappropriate sexual contact at adjudication. On April 7, 2006, a motion to terminate the parents’ rights was filed by the State. On June 24, 2006, “Shane and Teresa filed a joint motion in limine asking the court to keep out all testimony or other evidence relating to allegations of sexual abuse or failure to protect the children from such abuse. Shane and Teresa alleged that such evidence was not relevant and was in violation of (1) res judicata, (2) due process, (3) the right to confront accusers, and (4) double jeopardy. The juvenile court overruled the parents’ motion. “The court noted that ‘evidence relating to sexual abuse or failure to protect from such may be relevant to the best interest of said children.’” A hearing was then held on the state’s motion for termination in which the State called numerous witnesses who testified about the mental health and behavioral problems of the children. The lower court found that the children came within §43-292(7) and §43-292(6) and that termination was in the children’s best interests.

The Nebraska Court of Appeals began by addressing the parent’s allegations of error concerning their overruled motion in limine. The parents argued that whether or not they had sexually abused their three children had been previously decided when that portion of the original and the supplemental petition were dismissed. The court quoted from In re Interest of V.B. and Z.B., 220 Neb. 369 (1985). Even though there was a factual distinction between the current case and In re Interest of V.B. and Z.B. (one began from an adjudication hearing and the other from a termination hearing), the Court of Appeals found “…the principal behind the ‘circumstances have changed doctrine’ to be applicable here.” The Court of Appeals explained that the issues being litigated in this case at the adjudication hearings and termination hearing were not the same: the first was jurisdictional in nature and the second was the children’s best interests. “The unique and important considerations present in termination cases require that the juvenile court be able to hear pertinent and relevant information in determining a child’s current best interests….[T]he question of a child’s welfare and best interests is not static. Rather, it is a question that must be reexamined as circumstances change and time passes. For this reason, we find that the juvenile court did not err in finding that evidence concerning the children’s allegations of sexual abuse did not violate the principles of res judicata.” The Court next addressed the issue of collateral estoppel. Because the father did not raise this issue in the original motion in limine the issue was never before the juvenile court, so the appellate court could not consider it. As to the father’s allegations concerning the right to confront accusers, the court found that “…Shane’s right to confrontation was not violated because he had the right to call the three children to testify during his case in chief and that the evidence of the sexual abuse allegations was properly admitted pursuant to an exception to the hearsay rule.” Because this case is not a criminal case, but a juvenile one, the Confrontation clause’s heightened standards are not applicable. Thus, the analysis is one of due process and whether the father’s due process rights were violated. “The question becomes whether the evidence is relevant based upon the broad concerns of juvenile proceedings, with the Nebraska Evidence Rules serving as a guidepost.” Utilizing the Nebraska Evidence Rules, the Court of Appeals found that the evidence of the children’s allegations were properly admitted and that the therapists’ and other mental health specialists’ testimony and statements of the children’s foster parents to the children’s therapists concerning the children’s behavior and allegations were admissible under §27-803(3). The court then quoted from In re Interest of B.R. et al., 270 Neb. 685 (2005), to explain the breadth of the exception to hearsay found in §27-803(3). The Court next addressed the issue of relevance of the children’s allegations. The mother’s argument was that the State was attempting to terminate her parental rights under §43-292(5) and (7) and that neither of those subsections required proof as to whether or not the children were sexually abused. The court looked at the language of §43-292 (quoting a portion of it) and determined that “[t]his language makes it clear that the State must not only prove the existence of one or more of the statutory factors in §43-292, but it also must prove that termination of parental rights is in the children’s best interests.” The court concluded that the evidence offered as to the children’s mental state and the allegations of sexual abuse was clearly relevant in determining whether terminating the parent’s parental rights was in the children’s best interests. The court next discussed the mother’s allegations of error concerning the statutory grounds for termination. Because there was no dispute that the children were out of the parents’ home for 15 out of the last 22 months, the Court of Appeals found there was clear and convincing evidence to terminate the parents’ rights under that subsection. Finally, the court addressed the best interests of the children. The Court analyzed the best interests of the children solely under the §43-292(7) ground. “In such a situation, because the statutory ground for termination does not require proof of such matters as abandonment, neglect, unfitness, or abuse, as the other statutory grounds do, proof that termination of parental rights is in the best interests of the child will require clear and convincing evidence of circumstances as compelling and pertinent to a child’s best interests as those enumerated in the other subsections of §43-292.” (internal citation omitted).

LEGISLATIVE ACTIONS

2008 Child Welfare Interim Studies Introduced

LR 292 – Interim study to review services available to at-risk children age birth to five years. Introduced by Sen. Adams.

LR 346 – Interim study to reexamine the effects of changing the age of majority from age nineteen to age eighteen. Introduced by Sen. Rogert.

LR 348 – Interim study to examine the issue of language access in Nebraska’s healthcare and human services systems. Introduced by Sen. Dubas.

LR 355 – Interim study to examine the feasibility of the Dept. of Health and Human Services contracting with other social services agencies for the provision of foster care services. Introduced by Sen. Fulton.

LR 363 – Interim study to identify powers and duties of the Dept. of Health and Human Services, to prioritize programs and services, and to examine funding of programs and services. Introduced by Sen. Erdman.

2008 Child Welfare Bills – Final Actions

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 961 – Provide for and change transfers of State funds, provide for a juvenile justice system study, and prohibit pledging certain funds. Introduced by Sen. Flood.

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.

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

Creighton University Law School will be sponsoring a Continuing Legal Education Seminar entitled “Complex Issues in Juvenile Court Practice” on May 16, 2008 in Omaha from 8:30 a.m. – 4:30 p.m. This training has been approved by the Administrative Office of the Nebraska Supreme Court to meet the annual three (3) hour advanced training requirement for GALs required by the Supreme Court Rule Regarding Guardian ad Litem Training for Attorneys. The State of Iowa has approved this training for 6 ¼ hours of CLE credit. Click here for more information about topics and registration.

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

Other Trainings

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.

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

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