Foster Care Reform Update

06/04/2008


IN THIS ISSUE

1. Policy Spotlight: Relative Placement, Part II: Update on LB 1070 and Recently Released Policy Brief
2. Court Opinions: Amanda C. v. Case, 275 Neb. 757 (2008)
3. Legislative Action
4. Announcements

POLICY SPOTLIGHT

Relative Placement, Part II: Update on LB 1070 and Recently Released Policy Brief
Federal and state law requires that the Nebraska Department of Health and Human Services (HHS or the Department) prioritize relative placement once a child is removed from the parental home due to abuse or neglect. Generally relative placements are more stable than non-relative placements. Currently, Nebraska under utilizes relative placements. Of the 4,754 children in out-of-home placement in January, 2007, only 21% where placed with relatives. Quite often appropriate relative placements are not being sought until later points in the process, sometimes even after termination of parental rights. At that point a child is likely to have established a bond with a non-relative foster parent.

During the most recent legislative session, Senator Annette Dubas introduced LB 1070, a bill drafted and promoted by Nebraska Appleseed, which 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. LB 1070 would have required NHHS to identify and locate potential relative placements early in an abuse/neglect case and to investigate whether relatives could be a safe and appropriate placement within 30 days. To help facilitate this, the legislation would have required HHS to develop a form for parents to identify relatives once a child is removed. The bill had widespread support, including Voices for Children in Nebraska, the Foster Care Review Board, the Nebraska Foster Parents’ Association, and the Nebraska State Bar Association. Following the hearing, HHS made a commitment to implementing the goals of the bill administratively without the need for a legislative change at this time. We look forward to continuing to work with the Department on this issue.

Nebraska Appleseed recently released the first in a series of Policy Briefs on the issue of relative placements. The Policy Briefs are intended to serve as guides for practitioners on various Nebraska-specific child welfare policy and practice issues.

Click here to read LB 1070 and here to read the testimony given by Nebraska Appleseed

Click here to download Nebraska Appleseed’s recently released Policy Brief entitled “Relative Placement in Nebraska.”

COURT OPINIONS

Amanda C. v. Case, 275 Neb. 757 (2008)
http://www.supremecourt.ne.gov/opinions/2008/may/may23/s06-1097.pdf (Decided May 23, 2008)

In a related case prior to the one at issue, Gary Richmond alleged that the appellant, Kelly Case, a Nebraska Department of Health and Human Services (HHS or the Department) case manager, advised him of the legalities of a relinquishment and most importantly interfered in his substantive due process right to custody of his daughter pursuant to 42 U.S.C. sec. 1983 (2000). The matter went to a jury trial where Richmond won but received compensatory damages of only $1 but punitive damages of $65,000. The relinquishment was declared null and void. The appellant appealed and an out-of-court settlement was reached. Subsequently, Richmond brought another 42 U.S.C. sec. 1983 action against Case on behalf of his daughter, Amanda. The district court granted Amanda’s motion for summary judgment and awarded monetary damages. Case appealed the district court findings. The Nebraska Supreme Court affirmed the district court’s decision, finding that Case’s actions violated Amanda C’s right to a relationship with her father without due process.

Carol C. and Gary Richmond produced two children together that were removed by HHS at the time of their birth. Carol C. had mental health issues. The children were placed with their maternal grandfather and step-grandmother. Eventually Carol C. and Richmond relinquished their parental rights. Subsequently Carol C. became pregnant with Amanda C. and she and Richmond left Omaha and moved to Kimball, Nebraska to avoid HHS. Five years after Amanda C.’s birth, abuse allegations were made against Carol C. and Amanda was removed from the home in 1993. Abuse allegations were never made against Richmond. In 1995, HHS moved Amanda C. to Omaha with her maternal grandfather and step-grandmother without consulting Richmond. All visitations that occurred in Kimball ended once Amanda C. was moved to Omaha.

A motion to terminate parental rights was filed in September, 1997; Richmond was appointed counsel July, 1998. HHS requested that Richmond relinquish his parental rights to which he refused. In 1998, Case became the new case manager and continued to push for Richmond to relinquish. Case met with Richmond on numerous occasions advising him on the legal advantage of relinquishing his parental rights. She held a telephone conference between Richmond and Amanda C.’s placement to negotiate terms of an open adoption. This was done without the knowledge of Richmond’s attorney, Amanda C.’s GAL, the county attorney, and the court. Richmond’s attorney became aware of this meeting and sent correspondence to Case informing her that his client did not wish to relinquish his rights. Case claimed to have never received the correspondence from Richmond’s attorney. Case continued to meet with Richmond and advise him on the legalities of the relinquishment. Eventually Richmond signed the relinquishment and Case filed the papers.

Case assigned three errors to the district court’s findings on Amanda’s behalf. The first assignment of error was that the district court wrongfully determined that the doctrine of collateral estoppel did not apply to whether Case violated Amanda’s constitutional rights. There was no dispute that a final judgment was entered in Richmond’s action or that the party involved was the same party for which issue preclusion was sought. The only issue was whether Case’s interference with Richmond’s substantive due process rights regarding Amanda was identical to Amanda’s substantive due process rights. The court found that Case did violate Amanda’s substantive due process rights. The court citing, In re Guardianship of D.J., 268 Neb. 239 (2004), determined that a child has a reciprocal right to be raised and nurtured by his/her biological parent. Case argued that even if she did interfere with Richmond’s constitutional rights, the relinquishment was in the best interest of Amanda. Even with Richmond’s failure to maintain the parent/child relationship it was not relevant to Amanda’s constitutional right. There was no showing that Amanda failed to embrace her relationship with her father. Case’s wrongful interference with Richmond’s custody and control over Amanda established that she wrongfully interfered with Amanda’s constitution right to be in her father’s custody.

Case’ next assignment of error was that the court erred in finding that her actions caused actual damage to Amanda. Psychological evidence presented by Amanda showed that after the relinquishment Amanda struggled with substance abuse, depression, and began a downward spiral in school. Based on psychological evidence presented, prior to the relinquishment, Amanda seemed to handle other developmental risk factors without much adverse effect.

The final assignment of error was that the district court found that there was no genuine issue of fact to be determined. Case argued that factual issues regarding her and Richmond’s interactions were in dispute. The court stated that Richmond’s lawsuit gave a preclusive effect to these issues. Case also argued that it was not guaranteed that without the relinquishment, Richmond and Amanda would not have been reunited. The court opined that Case missed the point and that the only question was whether there was a genuine issue of material fact. The court stated that in the context of summary judgment, a fact is only material if it would affect the outcome of the case. Based on the psychological testimony presented by Amanda, the relinquishment caused the harm to Amanda in and of itself. The court stated that the only issue of material fact would have been if there was psychological evidence contrary to that presented by Amanda. Case did not present any contrary psychological evidence.
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Click here to read the Omaha World Herald article on this case.

NEBRASKA LEGISLATIVE ACTIONS

2008 Child Welfare Interim Studies Introduced and Committee referrals

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.

ANNOUNCEMENTS

SAVE THE DATE!

The week of August 11th Nebraska Appleseed is heading West! We will be touring the western part of our great state to meet and greet. Sarah Helvey, Director of the Child Welfare System Accountability Program, looks forward to meeting with attorneys in their hometowns. Scottsbluff, North Platte, Broken Bow, O’Neill, and Ainsworth are just a few of the cities that we will visit. Look for more information in next month’s update.

As always, 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 lyoung@neappleseed.org or (402) 438-8853, ext. 110.

LaShawn Young
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

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