Foster Care Reform Update

8/14/2007

In this issue:

• Policy Spotlight: Nebraska Supreme Court Adopts Guidelines for Guardians Ad Litem
• Nebraska Court Opinions – In re Interest of Ajal B. and Akur B. & In re Interest of Emily C.
• Federal Legislative Actions – No legislative report this issue
• Upcoming Events and Conferences

POLICY SPOTLIGHT

Nebraska Supreme Court Adopts Guidelines for Guardians Ad Litem

On July 18, 2007, the Nebraska Supreme Court Adopted“Guidelines for Guardians Ad Litem for Juveniles in Juvenile Court Proceedings” (“Guidelines”).The stated purpose of the Guidelines is “to ensure that the legal and best interests of juveniles in dependency and abuse/neglect proceedings initiated under the Nebraska Juvenile Code are effectively represented by their court-appointed guardians ad litem.” The Guidelines also apply to GALs in delinquency, status offense, or other proceedings initiated under the Nebraska Juvenile Code. The document also notes that the Guidelines “unless otherwise noted…set forth ‘best practice’ recommendations only and are not intended as Supreme Court rules.”

The following provisions of the Guidelines may be of particular interest to practitioners:

• “Any lawyer who serves as a guardian ad litem should fulfill the training requirements described in the Nebraska Supreme Court Rule Regarding Guardian Ad Litem Training for Attorneys.”
• “In addition to the statutorily required intervals for consulting with the juvenile, when possible, the guardian ad litem should consult with the juvenile when: a) [t]he juvenile requests that the guardian ad litem meet with him or her; [t]he guardian ad litem has received notification of any emergency, or other significant event or change in circumstances affecting the juvenile, including a change in the juvenile’s placement; and [p]rior to any hearing at which substantive issues affecting the juvenile’s legal or best interest are anticipated to be addressed by the court. The guardian ad litem should make every effort to see the juvenile in his or her placement at least once, with respect to each such placement.”
• “The guardian ad litem may testify only to the extent allowed by the Nebraska Rules of Professional Conduct.”
• “The guardian ad litem should advocate for the juvenile to be present at all court hearings as appropriate, and take steps where necessary to insure such attendance on the part of the juvenile.”
• “Attorneys should not accept caseloads or appointments to serve as a guardian ad litem or to provide guardian ad litem services that are likely to, in the best professional judgment of the appointed attorney, lead to the provision or representation or services that is ineffective to protect and further the interests of the juvenile, or likely to lead to the breach of professional obligations of the guardian ad litem.”

The Guidelines also set forth what GALs should do when “the juvenile expresses a preference which is inconsistent with the guardian ad litem’s determination of what is in the best interest of the juvenile.” In this situation, the Guidelines state that the GAL “shall assess whether there is a need to request the appointment of separate legal counsel to represent the juvenile’s legal interest in the proceeding. The Guidelines further provide factors for making such assessment and note that “[i]f the court exercises its statutory authority to appoint separate legal counsel, such counsel shall represent the juvenile’s legal interest.” In that situation, the Guidelines provide that the GAL shall “continue to advocate and protect the juvenile’s social and best interests as defined under the Nebraska Juvenile Code.”

Click here for the full text of the “Guidelines for Guardians Ad Litem for Juveniles in Juvenile Court Proceedings.”

The Supreme Court invited a period of public comment on theGuidelines. Click here to view Appleseed’s comment.

NEBRASKA COURT OPINIONS

In re Interest of Ajal B. and Akur B., A-06-1354 http://court.nol.org/opinions/2007/july/jul24/a06-1354.pdf (Decided July 24, 2007, not designated for permanent publication).

On May 6, 2006, the State filed a petition regarding two children (Ajal, 3; and Akur, 1½), alleging that the children were juveniles under §43-247(3)(a). The petition had two counts. Count I alleged the children lacked proper parental care by reason of fault or habits of the mother, who was found to be intoxicated and had marijuana, which was accessible to the children in the home. The juvenile court found that the allegations of count I of the petition were true based on the admission of the children’s mother. Count II alleged lack of proper parental care by reason of fault or habits of their mother and father/guardian, Wal, because Wal and the mother had a domestic altercation in the home. The parties stipulated that an altercation arose over unapproved people in the home and resulted in a cut on the mother’s finger. The parties also stipulated that the knife, which cut the mother, was in the mother’s hand and that Wal was intoxicated, however, there are no facts to indicate that mother’s cut was due to any action on behalf of Wal. The juvenile court found that the allegations in count II of the petition were true by a preponderance of the evidence and the court adjudicated the children; Wal appealed.

Upon review, the Court of Appeals reversed the order of adjudication on count I for several reasons. First, there was no indication of prior altercations between the parents or that the children were without parental care as a result of the incident. The appellate court found the evidence in this case unlike other cases where the mother was hospitalized due to injuries or the father was incarcerated as a consequence of his behavior causing a lack of parental care for the children. Second, there was no indication the behavior was likely to persist. The appellate court reasoned that because the State did not prove a history of altercations between Wal and the mother, and the altercation in this case did not indicate that the injury of the mother was a result on any action on the part of Wal, there was nothing to indicate a future risk of harm to the children.

In re Interest of Emily C., 15 Neb. App. 847 http://court.nol.org/opinions/2007/july/jul31/a06-1408.pdf (Decided July 31, 2007).

The Department of Health and Human Services (DHHS) appealed the decision of a juvenile court to continue its jurisdiction over Emily C., who was adjudicated for habitual truancy. DHHS sought to have the juvenile court’s jurisdiction terminated due to the fact that Emily had not been truant since she began attending Youth Rehabilitation and Treatment Center-Geneva (YRTC).

At a review hearing in August of 2004, the juvenile court refused to terminate its jurisdiction. While Emily had not been truant from school, the YRTC principal testified that it is difficult to be truant at YRTC because attendance is mandatory and if a student misses a class for any reason they are given their assignments and required to make up for the time missed. On cross-examination of Sara Goscha, a supervisor for DHHS, the State asked if DHHS had done anything to correct Emily’s truancy problems in a non-structured setting. Goscha indicated that they had not done anything and that they had did not know how Emily would perform in a non-structured environment. The juvenile court, in refusing to terminate its jurisdiction, found that “Emily … has not successfully attended school in an open setting and that there is insufficient evidence to demonstrate Emily has corrected the truancy issue.” The juvenile court also found that DHHS’s plan to terminate the court’s jurisdiction was not consistent with Emily’s best interests.

Upon review, the Court of Appeals cited In re Interest of Kevin K., 15 Neb. App. 641, a truancy case where the Court of Appeals previously held that even when the sole basis for the court’s jurisdiction is truancy and truancy no longer exists, termination is not required if it is not in the best interest of the child to do so. The Court of Appeals noted that “[t]he simple fact that Emily has not been truant at YRTC is not enough to terminate the court’s jurisdiction, because the situation at YRTC makes it nearly impossible for her to be truant…” The Court further noted that although “…Emily’s therapy goals do not directly align with her past truancy,” the Court could not conclude that these issues are “unrelated to her past truancy.” The Court of Appeals found that it was not in Emily’s best interest that the juvenile court terminate its jurisdiction over the truancy case and that, therefore, the juvenile court did not err in continuing its jurisdiction.

LEGISLATIVE ACTIONS

No legislative report this issue.

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

Prevent Child Abuse Nebraska & Nebraska Children and Families Foundation 2007 Conference - “Children Need Everyday Heros: New Directions in Child Abuse Prevention, Investigation & Treatment,” August 29-30, 2007, Holiday Inn Hotel and Convention Center, Kearney, Nebraska. For more information, call (402) 476-7226 or visit: http://www.nebraskachildren.org.

Supreme Court GAL Training - Recent Supreme Court Rule requires GALs in juvenile proceedings to complete six hours of specialized training. The requirement is effective January 1, 2008. The training will be offered in every Nebraska judicial district in the months of September and October. For additional information and to register for the training, visit: http://ccfl.unl.edu/registration/sc_gal.php.

NCLE Adoption Law Update – September 21, 2007, Lincoln, Nebraska. For more information, contact the Nebraska State Bar Association.

For more information about the Child Welfare System Accountability Program, please visit: http://www.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