09/17/2007

In this issue:

Policy Spotlight: The Nebraska Appleseed Foster Care Reform Legal Resource Center is Off and Running!
Nebraska Court Opinions: In re Interest of Connor S. & Marissa T.
Federal Legislative Actions: Interim Studies Update
Upcoming Events and Conferences

POLICY SPOTLIGHT

The Nebraska Appleseed Foster Care Reform Legal Resource Center is Off and Running!
The Nebraska Appleseed Foster Care Reform Legal Resource Center was launched in January of 2007. In nine months, we have grown to a group of over 100 attorneys across the state! The goal of the Legal Resource Center is to assist child welfare lawyers in enforcing the legal rights of children and families, developing positive precedents in juvenile cases, and advocating for policies and practices that will create systemic change. A number of attorneys have consulted the Legal Resource Center, for example:

Nebraska Appleseed was contacted by an attorney regarding an Indian Child Welfare Act (ICWA) case raising issues of active efforts. This summer, Nebraska Appleseed filed an amicus brief in the case arguing that active efforts is a higher and different standard than reasonable efforts in non-ICWA cases.

This spring, an attorney contacted us regarding two cases in which relatives were being pursued by the Department very late in the process, after the children had been in a stable foster home for a lengthy period of time. As a result of this inquiry, Nebraska Appleseed filed an Open Records Act Request with HHS seeking data and clarification of the Department’s policy on placing children with relatives. This information was compiled into a policy brief which has been distributed to several attorneys. One attorney emailed us, “I read your policy brief re: relative placement and think it is excellent. I even learned something new, and used a couple of your legal citations in my brief. Thank you for sharing your knowledge and information on this subject.”

The Legal Resource Center is available to assist practitioners in selected cases raising systemic issues in the child welfare system – by providing research and consultation or as co-counsel or amici. If you have a systemic issue in your juvenile court practice, please contact the Legal Resource Center at (402) 438-8853, ext. 106.

In addition, we hope this effort will create a coalition of attorneys across the state working in their individual cases to develop a better system for children and families. We also hope that you – attorneys on the “front lines” of Nebraska’s child welfare system – will help Appleseed identify issues that are ripe for policy reform. Please contact us if you would be interested in participating in a “working group” of attorneys to meet (or conference call!) periodically to discuss policy issues you have seen in your practice.

Finally, in the coming months, we hope to add additional resources to the Legal Resource Center website (www.neappleseed.org/lrc), including additional policy briefs on juvenile court issues, and example motions and pleadings. If you are willing to “donate” redacted motions or pleadings, please let us know! We also encourage attorneys to continue to discuss issues on the listserv. We encourage you to use the listserv as a tool to connect with other attorneys across the state and as a resource in your individual cases.

NEBRASKA COURT OPINIONS

In re Interest of Connor S. and Marissa T., A-06-1371 http://www.supremecourt.ne.gov/opinions/2007/august/aug7/a06-1371.pdf (Decided August 7, 2007, not designated for permanent publication).

The Court of Appeals upheld a termination of parental rights finding that the mother’s “habitual use of alcohol substantially and continuously or repeatedly impaired her ability to parent her children and rendered her unfit to parent.” The Court of Appeals further found that “the children need permanency and [the mother] has failed to make sufficient progress toward being able to parent the children” and therefore termination was in the children’s best interests.

The juvenile court record in this case indicated that the mother, Teresa, had a history of alcohol abuse and failed to comply with various juvenile court orders and conditions of probation. Among other things, the record indicated that Teresa had made a number of phone calls to Connor’s foster mother while intoxicated and on at least one occasion threatened to commit suicide. There was evidence that Marissa was present with no other supervision during these telephone calls. In addition, the record indicated that Teresa had appeared at her ex-husband’s home and attempted to pick up Marissa while intoxicated. The juvenile court terminated Teresa’s parental rights and Teresa appealed.

On appeal, the Court of Appeals found "that the State proved by clear and convincing evidence that Teresa's habitual use of alcohol substantially and continuously or repeatedly impaired her ability to parent her children and rendered her unfit to parent." The court noted that "[d]espite the existence of juvenile court orders concerning Teresa’s alcohol problems dating back to Connor’s adjudication in March 2004 and despite progress made during the course of 2004, and regardless of Teresa's intentions to overcome her alcohol problems, she repeatedly abused alcohol during 2005 and as a result was unfit to care for her children." The court referred to a previous holding in In re Interest of Brook P. et al., 10 Neb. App. 577, 634 N.W.2d 290 (2001) "that being a parent demands that at some point the parent's good intentions become reality."

The Court of Appeals also affirmed that the termination of parental rights was in the best interests of the children. Even though actual injury or physical harm to the children had yet to occur, the court citing In re Interest of Jaime M., 14 Neb. App. 763, 714 N.W.2d 780 (2006) stated that "[a] court need not await disaster to come into fruition before taking steps in the interests of the minor children." In support of this finding, the court noted incidents in which “Teresa had attempted to drive an automobile with Marissa as a passenger while Teresa was intoxicated” and that “Teresa threatened to commit suicide while Marissa was in Teresa’s sole care.” As well, the court stated that "the State adduced evidence that the children need permanency” and therefore held that termination of Teresa's parental rights was in the best interests of the children.

Finally, the Court of Appeals found Teresa’s appeal concerning the denial of her request for continued visitation “pending appeal” moot. Even thought the issue was moot, the court went on to explain that "[t]his court has held that the juvenile court retains jurisdiction to award continued contact to a parent whose parental rights have been terminated, while recognizing that once parental rights are terminated, a parent has no standing to assert entitlement to continued visitation....The Nebraska Supreme Court has upheld prior denials of continued visitation after termination of parental rights in cases where such continued visitation was found to not be in the best interests of the children." (internal citations omitted). In this case, however, the Court of Appeals found that the issue was moot because Teresa had not requested the continued visitation for after the appeal.

LEGISLATIVE ACTIONS

Interim Studies Update
The Unicameral’s Health and Human Services Committee will be traveling to each of the five DHHS service area offices (Lincoln, Omaha, Norfolk, Grand Island and Gering) the week of October 1st-5th as part of an interim study on Nebraska’s foster care system. LR 201, an interim study to examine policies with regard to non-English speaking families in Nebraska’s child welfare system, will be included in the overall foster care interim study. Appleseed is currently working with the HHS Committee to plan a public hearing or listening session in Grand Island on Tuesday, October 2nd. Details will be sent to the listserv as they become available. In the meantime, please contact us if you would be interested in participating in the interim study by attending this forum and educating our state senators about your experiences in the Nebraska foster care system.

The Unicameral’s Judiciary Committee convened a working group on August 27, 2007 as part of LR 97 (interim study to direct the Judiciary Committee to review the North Carolina statewide guardian ad litem system, introduced by Sen. Hudkins) and LR 200 (interim study to examine the guardian ad litem statutes and proposals for reform of the juvenile legal services system, introduced by Sen. Ashford). No formal hearings will be held with regard to these interim studies, but the Committee may re-convene the working group in the coming months. Several listserv members participated in the working group. Please feel free to contact Sarah or post a message to the listserv if you have questions or input regarding the GAL interim studies or working group.

For more information on interim studies, visit: http://www.unicam.state.ne.us

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

NCLE Adoption Law Update – September 21, 2007 at the Cornhusker Marriott Hotel in Lincoln. Topics include: “Recent Adoption Cases and a Review of LB 247 Birthfather Provisions” (Susan Kubert Sapp), “Attorneys and Social Workers – Working Together in Adoptions” (Kim Anderson), “Assisted Reproduction/Parentage/Birth Certificate Issues” (Kelly N. Tollefsen), “International Adoption and the Hague Convention” (Cheryl Murray), “Due Dilligence: Methods for Finding Birth Fathers and Birth Mothers” (Stanton Breeder), and “ICWA, ICPC and Adoption of State Wards Update” (Christine Costantakos). To register – www.nebar.com/store/category.asp?category=48

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

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

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