Foster Care Reform Update

11/19/2007

In this issue:

• Policy Spotlight: 15 out of 22
• Nebraska Court Opinions: In re Interest of Xavier H.
• Federal Legislative Actions: No relevent legislation in this issue
• Upcoming Events and Conferences

POLICY SPOTLIGHT

15 out of 22: The Law or Merely a Guideline?

15 out of 22…if you practice in juvenile court or, more importantly, if you are a foster child or a parent or caregiver of a foster child, these numbers mean something to you.

Last month, the Nebraska Supreme Court in In re Interest of Xavier H. overturned a termination of a mother’s parental rights stating that “the fact that the child has been in out-of-home placement for 15 or more of the most recent 22 months does not by itself demonstrate parental unfitness” and that the rebuttable presumption that reunification is in the child’s best interest is overcome only by showing unfitness. In re Interest of Xavier H., 274 Neb. 331 (2003). The court went on to state, citing In re Interest of Ty M. & Devon M., 265 Neb. 150 (2003), that 15 out of 22 months “merely provides a guideline for what would be a reasonable time for parents to rehabilitate themselves to a minimum level of fitness.’” (See below for a full summary of the Xavier H. case.)

After the Xavier H. case, the following question has been posed to us: “15 out of 22 is just a guideline? I thought it was the law.”

The short answer appears to be: it is the law, but a termination of parental rights based solely on 15/22 requires more than the passage of time and must look closely at the best interest of the child.

Federal and State Statutory Law

As most of you are well aware, the 15 out of 22 requirement first appeared in federal law in 1997 as part of the Adoption and Safe Families Act (ASFA) and is codified in the federal code at 42 U.S.C. 675(5)(E). ASFA requires that a state must file a petition to terminate parental rights (TPR) if the child has been in out-of-home placement for 15 of the last 22 months, unless:

1. at the option of the State, the child is being cared for by a relative;
2. a State agency has documented in the case plan (which shall be available for court review) a compelling reason for determining that filing such a petition would not be in the best interests of the child; or
3. the State has not provided to the family of the child, consistent with the time period in the State case plan, such services as the State deems necessary for the safe return of the child to the child's home, if reasonable efforts…are required to be made with respect to the child

 

Nebraska has codified essentially the same language as the federal statute. The third exception to the 15/22 requirement is worded slightly different. Under Neb. Rev. Stat. § 43-292.02(a), a TPR is not required to be filed if: “[t]he family of the juvenile has not had a reasonable opportunity to avail themselves of the services deemed necessary in the case plan or permanency plan approved by the court if reasonable efforts to preserve and reunify the family are required under section 43-283.01.” The 15/22 requirement also appears in Nebraska statutes in § 43-292(7) as a ground for TPR.

Case Law

Case law in Nebraska, however, has further defined the law in this area. First, the constitutionality of the 15/22 grounds for TPR has been repeatedly upheld by the Nebraska Supreme Court. In In re Interest of Ty M. & Devon M., 265 Neb. at 174-75, the Nebraska Supreme Court upheld the constitutionality of § 43-292(7), rejecting the argument that the provision uses an arbitrary and vague standard (15 months) to terminate parental rights and stating that “adequate safeguards are provided to ensure that parental rights are not terminated solely upon the length of time children are in an out-of-home placement.” Although the appellant mother in Xavier H. argued that the court should declare § 43-292(7) unconstitutional as violative of the mother’s fundamental substantive due process rights, the court declined to revisit its holding in Ty M. & Devon M. Note, however, that at least one state supreme court has held that termination based merely on a child’s out-of-home placement for 15 or more of the most recent 22 months violates a parent’s substantive due process rights to the care and custody of his or her child. In re Interest of H.G., 757 N.E.2d 864 (Ill. 2001).

Although the 15/22 ground for termination has been held to be constitutional in Nebraska, the analysis does not end with a simple counting of months. Nebraska appellate courts have stated that, when the sole ground for termination is 15/22, which does not require the state to prove any specific fault by the parent, evidence that termination is in the child’s best interest must be “as compelling and pertinent to a child’s best interests as those enumerated in the other subsections of § 43-292.” In re Interest of Aaron D., 269 Neb. 249, 260-61 (2005). Last month in the Xavier H. case, the Nebraska Supreme Court reiterated that a juvenile court may not terminate parental rights unless the parent is shown to be unfit and “[t]he fact that a child has been placed outside of the home for 15 or more of the most recent 22 months does not demonstrate parental unfitness.”

Conclusion

In conclusion, the 15/22 requirement involves more than a simple counting of months or the passage of an arbitrary amount of time. Instead, the best interests of the child must be considered both as part of the State’s duty to file a TPR petition and also in the State’s burden of proof at a TPR trial.

First, there is an exception to the State’s duty to file a TPR petition at the 15 month mark if the State has documented in the case plan compelling reasons that filing a TPR petition would not be in the child’s best interest. Neb. Rev. Stat. § 43-292.02(3)(b).

Second, the fact that the child has been in out-of-home placement for 15 or more of the most recent 22 months is not alone enough to meet the burden of proof at a TPR proceeding. Under § 43-292, in order to terminate parental rights, the State must prove, by clear and convincing evidence, that one or more of the statutory grounds listed in this section have been satisfied and that the termination is in the child’s best interests. In re Interest of Jagger L., 270 Neb. 828 (2006). Therefore, 15/22 fulfills the first prong, “one or more statutory grounds.” In order to terminate parental rights, however, the State must also prove the second prong, that it is in the child’s best interest to do so.

Here, the Nebraska Supreme Court’s recent decision in Xavier H. articulated that proving that termination is in the child’s best interest must include a showing that the parent is unfit. This flows from the fact that there is a rebuttable presumption that reunification is in best interests of the child. Xavier H. citing In re Guardianship of D.J., 268 Neb. 239, 244 (2004). The court in Xavier H. made clear that this presumption is overcome only by a showing that the parents are unfit. This aspect of the best interest analysis appears to be particularly critical when 15/22 is the sole ground for termination; as opposed to when termination is sought under other grounds and the evidence necessary to prove those other grounds (for example, abandonment or abuse) is likely to also go to the parent’s fitness and the child’s best interest. See In re Interest of Aaron D., 269 Neb at 260.

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@neappleseed.org or contact us at (402) 438-8853, ext. 106.

NEBRASKA COURT OPINIONS

In re Interest of Xavier H., S-06-841
http://court.nol.org/opinions/2007/october/oct19/s06-841.pdf (Decided October 19, 2007).

Background

The mother, Katianne, appealed a Nebraska Court of Appeals' decision affirming the termination of her parental rights under Neb. Rev. Stat. § 43-292(7). On appeal, she alleged five errors by the juvenile court, which the Nebraska Supreme Court articulated in a broader manner in terms of "the extent to which the State must respect a parent's fundamental constitutional rights when terminating parental rights under § 43-292(7)." Upon review, the Nebraska Supreme Court reversed the Court of Appeals decision to affirm the juvenile court's finding that termination was in Xavier's best interests.

Facts

The statement of facts in this opinion is quite lengthy. Of the opinion's twenty pages, fourteen pages recount the facts of the case. A summary of the facts is included below:

Katianne had three children. Xavier was the youngest of those children. Her two older daughters were never removed from her care, and her parental fitness as to those two children was not questioned. From his birth, Xavier had medical problems and was eventually diagnosed with milk and soy protein intolerance and reflux. His mother sought medical care for him. When it was determined that Xavier would have to be fed through a nasogastric feeding tube, Katianne grew concerned that Xavier's father and/or sitter would be unable to properly care for Xavier and his needs while she was at work. Katianne had begun suffering from postpartum depression soon after giving birth and returning to work. She did not immediately seek professional help. Katianne also had a history of drug and alcohol abuse as a young adult, but had not had a problem with such abuse since 2000. Katianne sought voluntary temporary out-of-home placement for Xavier, but this was not at first granted by the Department of Health and Human Services ("the Department" or “NDHHS”). However, it was later granted and Katianne and the Department agreed to a voluntary one month placement of Xavier. Xavier’s condition improved in foster care. On August 23, 2007, Katianne suffered a relapse by drinking hard liquor and taking pills, and was hospitalized for several days. Because of Xavier's continued need for care, the Department requested an extension of the out-of-home placement to which Xavier's father did not agree. Xavier was then adjudicated pursuant to § 43-247(3)(a) "...due to the parents' failure to provide proper care." The petition stated that “Xavier’s parents did not feel they were capable of caring for Xavier while he had the feeding tube.”

Despite the fact that Xavier was weaned from the feeding tube and his special needs were largely resolved, the adjudication led to the development of a case plan by NDHHS for Katianne. The Department took the position that Katianne was not to be reunited with Xavier until the goals of that plan were met. The goals of Katianne's case plan "included maintaining steady employment, attending therapy, submitting to random urinalysis testing, attending parenting classes, presenting a budget and receipts for the timely payment of her bills, enhancing her time management skills, maintaining a healthy lifestyle, maintaining her home in a condition suitable for visits, engaging in positive family activities, maintaining communication with service providers, and cooperating with a family support worker to set up visitation with Xavier."

While over time Katianne's visitation was decreased (from four times per week to one time per week) due to her canceled visits, between June 1 and December 2, 2005, Katianne attended 48 out of 59 scheduled visits with Xavier. To address substance abuse and mental health issues in accordance with her case plan, Katianne began receiving services from Lutheran Family Services. She successfully completed a 12-week substance abuse program and saw a psychiatris who prescribed antidepressants. However, she was twice discharged from the ongoing therapy program due to three "late cancels." She also successfully completed a parenting course with a family support worker, although it took her longer than most to complete the course.

The family support worker felt that Katianne did not learn how to properly budget, Katianne's house was disorganized, and while some visits between Katianne and Xavier went well, others went poorly. The case worker felt that the goal of positive family activities was only partially met and did not believe that Katianne had been successful in following her budget, achieving the goal of time management or completing the task of “keeping people out of her home who would be a risk to her children." The caseworker also stated that Katianne's communications with the Department were inconsistent and though she was employed continuously, she had held approximately fourteen different jobs. The worker also testified that she felt Katianne could not handle all three children and their needs.

A parenting evaluation had also been completed on Katianne by a clinical psychologist. The evaluation was generally positive and noted that "Katianne could take care of and relate to her children in an appropriate manner.” The psychologist recommended ongoing counseling and "clarified that Katianne's deficiencies could be adequately addressed by 6 to 18 months of therapy."

Termination of Parental Rights and Appeal to Court of Appeals

"After Xavier had been in foster care for 15 months, the Department abandoned its reunification plan and sought termination of Katianne's parental rights under §43-292(6) and (7)." At the start of the proceedings, Xavier's father relinquished his parental rights voluntarily. Both the State and guardian ad litem argued for the termination of Katianne's parental rights. "The juvenile court specifically found that the Department had failed to prove that, after reasonable efforts to preserve and reunify the family, Katianne had failed to correct the conditions leading to the § 43-247(3)(a) adjudication....Instead, the court terminated Katianne's parental rights under §43-292(7)." The court did not, however, state in its order the basis for determining that termination was in Xavier's best interests. The Court of Appeals affirmed concluding that termination was in Xavier's best interests because of "...Katianne's deficiencies in meeting her case plan's goal of budgeting and stable employment...Katianne had not been consistent in attending therapy...Katianne had been inconsistent with visitation and had difficulty managing her household with two other children...[and] Xavier's father was still present in Katianne's life and that he was a negative influence."

Analysis

On appeal, the Nebraska Supreme Court found that the juvenile court had erred in its finding that termination would be in Xavier's best interests. The Court explained that "[t]he proper starting point for legal analysis when the State involves itself in family relations is always the fundamental constitutional rights of a parent." The court then quoted from the U.S. Supreme Court concerning the need for a showing of unfitness. The Court continued by stating that "[w]e have likewise said repeatedly that '[a] court may not properly deprive a parent of the custody of a minor child unless it is affirmatively shown that such parent is unfit to perform the duties imposed by the relationship, or has forfeited that right.'" In speaking to whether being placed outside of the home for fifteen or more out of the most recent twenty-two months equals parental unfitness, the court stated that that fact "...does not demonstrate parental unfitness. Instead...[it] 'merely provides a guideline' for what would be a reasonable time for parents to rehabilitate themselves to a minimum level of fitness." The Supreme Court explained that although §43-292 does not expressly use the term "unfitness," "the concept is encompassed by the fault and neglect described in subsections (1) through (6), where applicable, and, for all subsections, by a determination of the child's best interests." The best interest standard does not require a determination that one environment is better than another, but instead "[t]here is a 'rebuttable presumption that the best interests of a child are served by reuniting the child with his or her parent.' Based on the idea that 'fit parents act in the best interests of their children,' this presumption is overcome only when the parents have been proved unfit."

Here, the State did not rebut that presumption. The State did not show why Katianne could adequately parent her two other children, but not Xavier. The sole basis for Xavier's adjudication was his special needs which no longer exist. In addition, the Supreme Court noted that the record showed that Katianne had improved her parenting skills, is employed, had continued with her medication and stayed sober, that she had “diminished her contact with Xavier’s father,” and has “attempted to maintain a bond with Xavier, attending most of her scheduled vistations.” The Court stated that "[t]he fact that Katianne is deficient in her time management, budgeting, organization, and implementation of the 'timeout' technique does not make her an unfit parent." "'[T]he law does not require perfection of a parent.'" The Court was most troubled by the fact that the Department argued that Katianne could parent two children but not three, which is "inviting the arbitrary removal of one." The Court also stated that it has never deprived a parent of custody simply because a stranger might provide better for the child financially or otherwise. As to concerns for permanency, the Court explained that Xavier can have permanency with his natural mother, "to whom he should have been returned as soon as it was safe to do so....[A] child [should not] be held hostage to compel a parent's compliance with a case plan when reunification with the parent will no longer endanger the child." Since termination was not in Xavier's best interests, Katianne's parental rights could not be terminated, whether under §43-292 (6) or (7). The Court concludes its opinion stating that "[t]ermination of parental rights is permissible only in the absence of any reasonable alternative and as the last resort to dispose of an action brought pursuant to the Nebraska Juvenile Code."

LEGISLATIVE ACTIONS

No relevant legislation to report.

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

Appleseed Trainings

FREE Communications Training: Communications Strategies for Shaping the Public Debate, November 27, 2007, 1:00 p.m. – 3:00 p.m. at Boys and Girls Town National Headquarters, Conference Room S, 14100 Crawford Street, Boys Town, NE 68010. Learn how to talk about your work in ways that will draw mainstream support. Featuring Julie Rowe, Communications Coordinator for the Opportunity Agenda. Who should attend: Executive Directors, Communications Coordinators, Advocates, Human Service Providers, Non-Profit Board Members. Sponsored by Nebraska Appleseed and Opportunity@Work. Please RSVP to Rebecca Gonzales, mrgonzales@neappleseed.org, if you are planning to attend or have questions.

Immigrant Integration & Legal Issues Training, December 12, 2007 at the Lancaster County Extension Office, 444 Cherrycreek Road in Lincoln. From 9:00 a.m. – 12:30 p.m., join us for an overview of “Basic Immigrant Rights and Access to Justice,” including immigration overview, immigrant worker rights, rights during immigrant enforcement and detention, and access to public benefits and interpreters. From 1:30 p.m – 3:30 p.m., join us for “Immigrant Access to Mainstream Financial Services,” including best practices from around the country, the basics your clients/customers should know about why and how to consider opening an account, and how to reach out to new immigrant clientele. Join us for one or both trainings with lunch in between. Register online at http://www.neappleseed.org/register. For more information, contact Rebecca Gonzales at rgonzales@neappleseed.org. These trainings are made possible through the generous funding of the Lincoln Community Foundation.

Other Trainings

LB 554 Training for Domestic Intimate Partner Abuse: Family Law Screening and Practice Strategies, December 7, 2007, 8:30 a.m. – 4:30 p.m., UNL College of Law, co-sponsored by NDVSAC, NCLE, Omaha DVCC, and the Nebraska Office of Dispute Resolution. Topics include: “What attorneys might not know about domestic intimate partner abuse and child abuse but really should know,” “The victim client and the batterer client: strategies for practice,” “Attorney participant dialogue: domestic abuse and high conflict clients,” “Use of protective orders and restraining orders in family practice,” “Basic requirements and components of LB 554 in practice,” “Mediation and its impact upon attorney practice under LB 554,” and “Parenting plan and other filings under LB 554.” Special registration fee: $59. To register –http://www.nebar.com/store/category.asp?category=48

For more information about the Child Welfare System Accountability Program, please visit: NeAppleseed.org/children

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