Foster Care Reform Update

07/30/2008

IN THIS ISSUE

1. Policy Spotlight: Expanding Children’s Rights After Amanda C. v. Case
2. Court Opinions: In re Interest of Courtney S. et. al.; In re Interest of Jazzmine W. v. Nebraska Department of Health and Human Services
3. Announcements

POLICY SPOTLIGHT

Expanding Children’s Rights After Amanda C. v. Case
Amanda C. v. Case, 275 Neb. 757, 749 N.W. 2d 429 (2008), an opinion highlighting the parent/child relationship from the perspective of the child’s rights, was recently issued by the Nebraska Supreme Court. The Court held that the Nebraska Department of Health and Human Services case manager violated Amanda’s due process rights to a relationship with her father by continuously meeting with him and giving him legal advice regarding relinquishment after his attorney advised her to stop. Prior to Amanda’s case, her father filed a claim against the same caseworker for the same behavior alleging interference with his substantive due process right to custody and control of Amanda. Amanda’s father was awarded monetary damages. Amanda’s father then filed the instant case as next friend on behalf of his daughter alleging a violation of her substantive due process right to be raised by her biological parent and citing evidence of psychological damage to Amanda following the relinquishment. Amanda was also awarded monetary damages and the Nebraska Supreme Court stated that the right to family integrity protects not just parents but also children’s reciprocal to a relationship with their parents. In articulating the child’s right to a relationship with their parents, the Nebraska Supreme Court stated, “it is clear therefore that both parents and their children have cognizable substantive due process rights to the parent-child relationship.” Id. at 766, 749 N.W. 2d at 437 (2008).

A number of courts, from the United States Supreme Court to the Nebraska Supreme Court, have commented on the constitutional rights of children in familial relationships. In Troxel v. Granville, 530 U.S. 57, 120 S. Ct. 2054 (2000), the U.S. Supreme Court held that the due process clause of the fourteenth amendment protects the fundamental right of parents to make decisions as to care, custody, and control of their children. In his dissent, Justice Stevens commented on the reciprocal rights of children opining that, “it seems to me extremely likely that, to the extent parents and families have fundamental liberty interests in preserving such intimate relationships, so, too, do children have these interests, and so, too, must their interests be balanced in the equation.” Troxel, 530 U.S. at 71, 120 S. Ct. at 2068 (2000). See also Bellotti v. Baird, 433 U.S. 622, 626, 99 S. Ct. 3035, 3039 (1979) (“Both parents and children in a familial relationship are protected by the U.S. Constitution”); Quillion v. Walcott, 434 U.S. 246, 255, 98 S. Ct. 549, 558 (1978) (“We have recognized on numerous occasions that the relationship between parent and child is constitutionally protected”).

Courts in other jurisdictions have likewise articulated a constitutional right of children to a relationship with their parents. For example, in Espinoza v. O’Dell, 633 P.2d 455 (1981), the Colorado Supreme Court recognized a liberty interest in the mutual relationship between child and parent. Similarly, the Ninth Circuit held that a child’s interest in the continued companionship and society of his/her parents is a recognizable liberty interest. Smith v. City of Fontana, 818 F.2d 141 (9th Cir. 1987). See also Johnson v. Hunter, 447 N.W. 2d 871, 876 (Minn. 1989)(“Establishment and continuance of the parent-child relationship “is the most fundamental right a child possesses to be equated in importance with personal liberty and the most basic constitutional rights.”); Franz v. United States, 707 F.2d 582, 595 (1983) (“It is beyond dispute that ‘freedom of personal choice in matters of family life is a fundamental liberty interest’ protected by the Constitution…among the most important of the liberties accorded this special treatment is the freedom of a parent and child to maintain, cultivate, and mold their ongoing relationship”). Prior to Amanda C., the Nebraska Supreme Court stated that the parental superior right to child custody protects not only the parent’s right to the companionship, care, custody, and management of his or her child, but also protects the child’s reciprocal right to be raised and nurtured by a biological or adoptive parent. In re Guardianship of D.J., 268 Neb. 239, 682 N.W. 2d 238 (2004).

Although courts have recognized a liberty interest in familial relations, this right must be balanced with the State’s interest in protecting children. See e.g., Maryland v. Craig, 497 U.S. 836, 855,110 S. Ct. 3157 (1990) (discussing “the State’s traditional and ‘transcendent interest in protecting the welfare of children’”); Meyer v. Morris, 810 F.2d 1437, 1462 (8th Cir. 1987) (noting that “the right is limited by an equally compelling governmental interest in the protection of children, particularly where the children need to be protected form their own parents.”).

The Nebraska Supreme Court’s recent enunciation of this reciprocal right of children raises the question of how this case might be used to expand children’s rights in Nebraska. For example, could this right be expanded to include the right of a child to attend court hearings, or used to request visitation with a parent or a particular out-of-home placement? Could this right be expanded to include a child’s right to counsel in certain circumstances? These questions are just a few questions to consider and discuss. We’d love to hear how you feel Amanda C. may impact your representation of children.

COURT OPINIONS

In re Interest of Courtney S., et. al, No. A-07-1295 http:/supremecourtne.gov/opinions/208/june/jun17/a-07-1295.pdf
(Decided June 17, 2008, not designated for permanent publication)

Dana S. appealed from an order terminating her parental rights to her children. She challenged the statutory grounds for the termination of her parental rights and the juvenile court's finding that termination of her parental rights is in the best interest of the children. She also assigned as error the juvenile court's "improper delegation" of the parameters of her supervised visitation with the children. The Nebraska Court of Appeals affirmed the juvenile court’s finding that the State proved by clear and convincing evidence that the children were within the meaning of their respective statutes and that it would be in all five children's best interests if Dana's parental rights were terminated. Finally, the court found that there was no merit to Dana’s argument that the juvenile court improperly delegated the parameters of her visitation and that the juvenile court did not err in relying on evidence presented regarding her visitation in considering termination of parental rights.

The State originally filed a petition alleging that Dana had failed to provide necessary care and support for her three children because she had not picked them up from school or daycare. Subsequently two other children were born during the course of the juvenile case and supplemental petitions were filed that included those children. The children were placed in the temporary custody of the Nebraska Department of Health and Human Services (DHHS).

The court held multiple disposition, review and permanency planning hearings, in June, July, and October, 2005 and 2006. During these hearings the court entered orders requiring Dana to complete a rehabilitation plan. At the July 18, 2005 hearing, DHHS reported that Dana’s visits with her children were sporadic and the children were being driven 30 minutes to an hour for a visit and often Dana did not appear. At that hearing, the court entered an order stating that Dana was to "have reasonable rights of visitation pursuant to a written schedule and as arranged by [DHHS, which] may require the mother to call in advance and confirm her visits." On May 9, 2006, the State filed a motion for termination of Dana's parental rights as to all five of the children and the motion was subsequently granted by the juvenile court.

On appeal, Dana argued against termination under the various grounds pled by the State pursuant to Neb. Rev. Stat. § 43-292. The Court of Appeals stated that termination of parental rights is proper if at least one of the statutory provisions in § 43-292 is proven by clear and convincing evidence. Dana further argued that it was not in the best interest of her children for her parental rights to be terminated. The Court of Appeals disagreed noting her failure to comply with any rehabilitative plan over the three years that her family was involved in juvenile court.

Dana’s final assignment of error was that the juvenile court improperly delegated the parameters of her supervised visitation with the children to DHHS and that her subsequent sporadic visitation should not have been considered in the termination. The Court of Appeals noted that Neb. Rev. Stat. § 43-285 does not authorize DHHS to determine or place restrictions on parental visitation rights and that parental visitation rights are matters for judicial determination. In re Interest of C.A., 235 Neb. 893 (1990). However, the court did not make a determination as to whether there was an improper delegation of the juvenile court’s authority but found that Dana was represented by counsel during all of the juvenile proceedings and failed to file an appeal of the dispositional order. Due to her failure to appeal the juvenile court’s order there was no merit to her assignment of error on appeal. The Court of Appeals found that there was no error by the juvenile court in considering evidence of her sporadic attendance at visitation in determining if her parental rights should be terminated.

In re Interest of Jazzmine W. v. Nebraska Department of Health and Human Services, A-08-076 http://www.supremecourt.ne.gov/opinions/2008/july/jul1/a08-076.pdf
(Decided July 1, 2008, not designated for permanent publication)

The Nebraska Department of Health and Human Services (DHHS) appealed a juvenile court order which required them to maintain supervision of the minor child, Jazzmine, after her grandmother was appointed as her guardian. The Court of Appeals agreed with DHHS and dismissed them from the matter. DHHS also appealed the juvenile court’s continued involvement with the minor child. The Court of Appeals determined that because it found for DHHS under its first assignment of error that DHHS had no further standing on the issue.

On December 20, 2004, Jazzmine was adjudicated in the juvenile court of Douglas County to be a minor child within the meaning of Neb. Rev. Stat. § 43-247(3) due to the failure of her mother, Jennifer W., to provide proper or necessary subsistence, education, or other care necessary for the health, morals, or well-being of Jazzmine. The court ordered that Jazzmine be placed in the temporary custody of the Nebraska Department of Health and Human Services (DHHS). In an order on December 20, 2007, Jazzmine's maternal grandmother, Tammy R., was appointed Jazzmine's guardian. The juvenile court did not relieved DHHS of its responsibility and ordered 6 month reviews of the guardianship. DHHS appealed the order.

DHHS assigned two errors on appeal. DHHS' first assignment of error was that the court failed to relieve DHHS of its custody of Jazzmine despite the appointment of Jazzmine's grandmother as guardian. The Court of Appeals agreed and cited case law stating that “once a guardianship is established, it is proper for DHHS’ authority and responsibility for the child to be terminated.” In re Interest of Antonio S. & Priscilla S., 270 Neb. 792, 708 N.W.2d 614 (2005). That case relied in part on a DHHS regulation stating that “once the court order establishes guardianship, [DHHS] no longer has any authority or responsibility for the child except as might exist due to a subsidized guardianship.” 390 Neb. Admin. Code, ch. 6, § 004(4) (1998). The Court of Appeals noted that the juvenile court had appointed Jazzmine’s grandmother as guardian, she had all the powers and responsibilities of a parent, as well as physical custody of Jazzmine. The Court of Appeals further noted that a guardianship differs from mere placement in a home in which the juvenile remains in the custody of DHHS and cited case law prohibiting dual custody by “separate agencies” at the same time. In re Interest of Jeremy T., 257 Neb. 736, 600 N.W.2d 747 (1999). The Court of Appeals concluded that “it is inconsistent with Nebraska law for the juvenile court to have appointed Jazzmine’s grandmother as guardian, but required DHHS to retain its custodial responsibilities for her at the same time”. The Court of Appeals held that DHHS should have been relieved of its custody of and responsibility for Jazzmine once her grandmother was appointed guardian.

DHHS' second assignment of error was that the juvenile court erred in retaining jurisdiction over Jazzmine once it appointed her grandmother as guardian. The Court of Appeals found that because DHHS’ first assignment of error was sustained, DHHS was released from its responsibility and lacked standing to object to the juvenile court’s retaining jurisdiction over Jazzmine.

ANNOUNCEMENTS

Appleseed “Out West” Trip - Appleseed is heading west the week of August 11, 2008. During that week we will be in the following cities on these dates:

• 8/11/08 O’Neill/morning; Ainsworth/afternoon
• 8/12/08 Chadron/morning; Scottsbluff/afternoon
• 8/13/08 Ogallala/morning; McCook/afternoon
• 8/14/08 Lexington/morning; Broken Bow/afternoon

Sarah Helvey is planning to meet with attorneys in these areas to provide resources and discuss various issues you are seeing in your juvenile court practices. If you are available to meet, please email Sarah at shelvey@neappleseed.org.

Advanced Guardian Ad Litem Training, Friday, August 15, 2008, 9 a.m. - 3:30 p.m., at the Kearney Holiday Inn, sponsored by the NSBA Women and the Law Section. Attendance at the morning session will satisfy the annual requirement for three hours of advanced guardian ad litem continuing legal education for attorneys who serve as GALs in the Nebraska courts. Cost for the morning session is $109, with a reduced rate available for Women and the Law Section members. For more information, contact the NSBA at 402-742-8131 or 1-800-927-0117 ext 131.

The Nebraska Department of Health and Human Services recently announced that there has been a significant reduction in the number of children in out-of-home care. Click here to read an article in the Omaha World Herald regarding HHS’s announcement of a drop in the number of state wards.

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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