12/23/2008

IN THIS ISSUE

1. Policy Spotlight: The Policy Year in Review
2. Court Opinions: In re Interest of Jacob T.; In re Interest of Elvis T.; In re Interest of Sarah L. et. al.; In re Interest of Bianca H. & Eternity H.; In re Interest of Anaya.
3. Legislative Update: Safe Haven
4. Announcements

POLICY SPOTLIGHT

The Policy Year in Review

As this year draws to a close, I’d like to take the time to reflect on some of the policies set forth by our various branches of government during 2008.

First, from the executive branch, the Nebraska Department of Health and Human Services (NDHHS), in seeking to reduce the number of children in out-of-home care and provide services on a voluntary basis to families if safety can be assured, began this year with the implementation of its’ new safety model, the Nebraska Safety Intervention System (NSIS). The NSIS creates a new safety assessment by which the Department determines key decisions for the family as well as a new safety plan process. Despite the plan being implemented by NDHHS at the beginning of 2008, the plan has not yet been promulgated into its’ rules and regulations. However, a copy of the NSIS policy is available on the NDHHS website at: http://www.hhs.state.ne.us/jus/AM.htm. All juvenile attorneys should become familiar with this new policy as it will have a significant impact on the children and families we represent.

This year, NDHHS also introduced a plan to privatize its’ services to families. The In-Home Services Reform was implemented in July. This involves contracts with five services providers across the state for “the provision of a continuum of Safety and In-Home services to children who are at risk of removal from the family home or to prepare a family for return of a child to the home.” The Out-of-Home Care Reform is scheduled to begin in 2009. This will include the provision of all non-treatment services. Both the In-Home and Out-of-Home contracts include (or will include) financial incentives and disincentives for federal outcomes. More information about these reforms is available at: http://www.hhs.state.ne.us/Children%5FFamily%5FServices/OHReform/

From the judicial branch, several important cases impacting juvenile law were handed down this year. Addressing the active efforts requirement in ICWA cases, the Nebraska Supreme Court in In re Interest of Walter W., 274 Neb. 859 (2008), determined that active efforts requires more than reasonable efforts and that “at least some efforts should be ‘culturally relevant.’” However, the Court also stated that “there is no precise formula for ‘active efforts’” and that active efforts must be evaluated on a case-by-case basis. Id. at 865.Walter W. also established that the standard of proof of active efforts in a termination of parental rights is clear and convincing evidence, not beyond a reasonable doubt. The second requirement in an ICWA parental termination is that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child. This requirement must be proven beyond a reasonable doubt. Therefore, there are two separate standards of proof within an ICWA case in Nebraska.

Another significant case decided by the Nebraska Supreme Court this year was Amanda C. v. Case, 275 Neb. 757 (2008). In Amanda C., the trial court awarded monetary damages to the child because of the due process violation of the parent/child relationship by the case manager who was found to have interfered with the relationship by seeking to have the father relinquish his parental rights despite being informed by the father’s attorney to stop communications with his client. Initially, the father successfully sued for damages and subsequently sued on his daughter’s behalf. The Nebraska Supreme Court stated that the right to family integrity protects not just parents’ but also children’s reciprocal right to a relationship with their parents. In articulating the child’s right to a relationship with their parents, the Nebraska Supreme Court stated, “[i]t is clear therefore that both parents and their children have cognizable substantive due process rights to the parent-child relationship.” Id. at 766.

The Nebraska legislature caused a national stir this year with the passage of its’ safe haven bill, which became the law in July, 2008 and had no age specification. The vast majority of children dropped off under the law were over the age of 10, many with significant behavior and mental health issues. Due to the mounting number of children being dropped off, the legislature convened a special session with the narrow focus of limiting the age requirement in the safe haven law. The special session ultimately limited the safe haven law to infants under 30 days old, but the session also provided an opportunity to hear testimony on the issue of the lack of services for families with older children in need of assistance due to behavioral and mental health needs. Following the special session, a task force was developed by the legislature to look into the issue and to hopefully help develop solutions. At this time, it appears that the task force’s recommended legislation will focus on regional crisis, information and referral services. Many advocates, including Appleseed, are hoping this will include addressing the limited availability of behavioral health services in the state.

One of the most significant pieces of legislation for the year came from the U.S. Congress. The Fostering Connections to Success and Increasing Adoptions Act of 2008 was signed by President Bush on October 7, 2008. This new legislation encompasses a plethora of issues that no doubt will improve how and what services are available to families in crisis. A few highlights of the bill include expanding the Adoption Incentives Program, delinking IV-E adoption subsidy eligibility from 1996 AFDC income eligibility, and requiring agency due diligence to identify relatives within 30 days of removal, reasonable efforts to place siblings together, and all foster children to be enrolled in their school of origin where appropriate.

This legislation should have a positive impact on Nebraska children. We will keep listserv members posted on the implementation of this law in Nebraska as federal regulations are developed and NDHHS determines whether to take advantage of various optional provisions.

Please contact LaShawn Young if you have a case in which you are concerned about services that have been court ordered but the services have not been provided or there is a waiting list to receive the services that are needed.

COURT OPINIONS

In re Interest of Jacob T., No. A-08-422
http://www.supremecourt.ne.gov/opinions/2008/november/nov4/a08-422.pdf
Decided November 4, 2008

The juvenile court terminated Manuel’s (the father’s) parental rights and he appealed. In terminating Manuel’s parental rights, the juvenile court found that there was clear and convincing evidence that, in spite of a language barrier, Jacob’s (the child’s) placement in foster care was communicated in such a way that Manuel could understand and that Manuel was aware of the child because paternity had been established and child support was being paid that he had therefore abandoned Jacob. The Court of Appeals reversed and remanded the termination of Manuel’s parental rights declaring that, despite the fact that the father did not have contact with the child during the relevant period, the juvenile court erred in finding that he abandoned Jacob, based in part on the fact that the father did not fully understand information provided to him and that the record included limited evidence about the father relative to best interests. The Court of Appeals also reversed the juvenile court’s finding that reasonable efforts were not necessary.

Jacob was placed into foster care in 2003 after being removed from his mother’s care. Jacob’s mother relinquished her parental rights in 2006. Subsequently, a supplemental petition alleging that Jacob was within the meaning of 43-247(a) and a termination alleging 43-292(1), (2), and (9) were filed against Manuel in 2007. The State also alleged that reasonable efforts were not necessary pursuant to 43-283.01.

An attorney was appointed for Manuel and eventually a guardian ad litem (GAL) were also appointed after a family assessment was completed. Despite the state’s pleadings which alleged that reasonable efforts were not required pursuant to 43.283.01, the juvenile court ordered that reasonable efforts should include a family assessment with Jacob’s therapist to make a determination on what would be appropriate for visitation taking into account Jacob’s mental health status.

At separate times, Manuel met with the therapist, guardian ad litem, and case manager. All parties questioned his ability to adequately understand English. The therapist recommended therapeutic visitation. The case manager instructed Manuel to contact an interpreter to help set up the therapeutic visitation. The natural mother of Jacob, Dyann, testified that she informed all of the caseworkers involved that Manuel was the father of Jacob. She gave testimony of Manuel’s involvement with Jacob prior to the removal from her home which included him buying clothes and giving money to Jacob. She also testified that she attempted to explain to Manuel why Jacob had a caseworker and that Manuel told her that wanted to get Jacob back. She also testified that Manuel understood both her and Jacob.

The juvenile court found that Jacob came within the meaning of 43-247(3)(a) and 43-292(1), (2), & (9) and that reasonable efforts were not required. In reaching its decision, the juvenile court struggled with finding that the termination was in the best interest of the child. The court had concerns with various facts including the fact that Manuel was brought into the juvenile matter so late. The court voiced concerns regarding what type of notice Manuel received regarding Jacob being in foster care and whether he was given notice in a manner that he could understand since English is not his first language. The court did note that Manuel was aware of Jacob as paternity had been established and he was paying child support. Ultimately, the court determined that Manuel was aware of Jacob and that he was in out-of-home placement.

On appeal, Manuel assigned as error the juvenile court’s termination findings under 43-292(1), (2), and (9) and finding that reasonable efforts were not necessary pursuant to 43-283.01. Reasonable efforts are unnecessary under 43-283.01 if a juvenile has been subjected to aggravated circumstances one of which is abandonment.

The Court of Appeals addressed Manuel’s assigned errors under 43-292(1) and (9). The Court of Appeals stated that there are no cases regarding abandonment under 43-292(9), which allege that an aggravated circumstance (such as abandonment) exists and that termination is in the child’s best interest. The Court of Appeals then focused on 43-292(1), which provides grounds for termination when a parent has “abandoned the juvenile for six months or more immediately prior to the filing of the petition.”

As to 43-292(1), the Court of Appeals reviewed the six months prior to the filing of the supplemental petition (the relevant timeline for abandonment) and noted that, based on the evidence presented, Manuel had met with the case manager through an interpreter regarding how to become involved in the case but, even with an interpreter, there were questions regarding how much he understood due to the language barrier. The case manager testified that she believed that Manuel spoke good English but felt that the conversation regarding the court process was confusing because she was not certain that he understood even with the interpreter. The Court of Appeals was also concerned with the lack of effort to have Manuel involved earlier in the case despite all three caseworkers that had been involved being aware of him. The father received a letter from the case manager regarding how to contact the therapist which he did but was unable to effectively communicate with the therapist due to the lack of an interpreter and thus failed to have any further sessions with the therapist. The Court found that the record failed to establish that Manuel received clear, useful evidence on how to intervene in the case. Therefore, the Court of Appeals determined that Manuel did not abandon Jacob due to the lack of properly communicated information given to him on how to become involved in the case. The Court of Appeals rejected the juvenile court’s finding that abandonment was proven by clear and convincing evidence pursuant to 43-292(1) and (9).

Manuel also asserted as error the finding that the termination was in the best interests of Jacob. The Court of Appeals found that the record was limited on information regarding Manuel. Information from the natural mother indicated that Manuel had regular contact with Jacob prior to his removal from the home. The Court noted that Manuel’s lack of court involvement prior to the supplemental filing appeared to be complicated by the language barrier. The Court of Appeals determined that the only testimony regarding best interests came from the case manager. The court opined that the lack of evidence about Manuel, his circumstances, his desire and ability to change his circumstances, and his fitness to parent failed to show that the termination was in the best interest of Jacob. Therefore, the Court of Appeals held that there was insufficient evidence that termination was in the child’s best interest with respect to Manuel.

 

In re Interest of Elvis T., A-08-595
http://www.supremecourt.ne.gov/opinions/2008/november/nov4/a08-595.pdf
Decided November 4, 2008

The Court of Appeals upheld a juvenile court’s decision terminating a father’s parental rights. The juvenile court held that the state proved 43-292(5), (6), and (7) by clear and convincing evidence and that it was in the best interest of Elvis that Terry, his father’s, parental rights be terminated. Terry appealed the statutory grounds for the termination. The Court of Appeals acknowledged that Terry, in spite of his mental health limitations, complied with the majority of the court’s orders but ultimately determined that he was incapable of parenting independently.

Elvis was removed from the home of his father, Terry, and his mother in 2006 immediately after his birth. Terry entered a no contest plea pursuant to a no fault petition that alleged that he was unable to parent due to his mental health diagnosis of intermittent explosive disorder and suspected borderline to mild mental retardation. A case plan was adopted by the court that made various orders to assist in reunification. The natural mother subsequently relinquished her parental rights. Terry made efforts to comply with services and participate in visitation, but a termination of his rights was filed and the allegations were found true by clear and convincing evidence by the juvenile court. Terry appealed the statutory allegations and best interests.

The Court of Appeals found that 43-292(7) was true by clear and convincing evidence and that it was in the best interest of the child that Terry’s rights be terminated. The Court noted that the father loved his child but was limited by his mental health capabilities. The Court cited evidence showing various therapeutic services provided to the father. The evidence showed that, in spite of the services provided to improve Terry’s parenting skills and ability to provide for Elvis, minimal improvement was made over a 2 year period. The evidence showed that, due to his intellectual limitations, Terry did not have the ability to independently parent Elvis.

 

In re Interest of Sarah L. ET. al., A-08-198
http://www.supremecourt.ne.gov/opinions/2008/november/nov10/a-08-196.pdf
Decided November 10, 2008

This matter was an appeal from the juvenile review panel. The Nebraska Department of Health and Human Services initially appealed the juvenile court’s order that failed to adopt the case plan, which required Mitchell, the father/stepfather, to submit to a scientific test regarding his risk of future sexual abuse. The juvenile review panel reversed the juvenile court’s order. Mitchell appealed the juvenile review panel’s decision to the Court of Appeals. The Court of Appeals upheld the juvenile court review panel’s decision and held that Mitchell had not proved that NDHHS’ plan was not in the best interest of the child. The Court of Appeals also noted that Mitchell objected to the admissibility of the test’s results, but the case plan only required that Mitchell take the test. The Court of Appeals determined that the future admissibility of test results is not relevant to approving the case plan.

A no fault petition was filed against Mitchell and Janelle, the mother of the children, alleging that Mitchell attempted sexual contact with his niece. Another allegation by one of the children was made against Mitchell regarding inappropriate sexual contact. Those allegations were recanted. Therapeutic services were provided for the family.

At a subsequent review hearing, the juvenile court received a report from NDHHS recommending that Mitchell undergo a penile plethysmopgraph (PPG), as recommended in an updated risk assessment. This procedure was recommended to help provide physiological data regarding the strength and nature of Mitchell’s arousal to a variety of visual and auditory sexual stimuli. Mitchell objected to the procedure and asked for a Daubert hearing. At a continued hearing, the juvenile court heard evidence regarding PPG which included testimony that PPG cannot be used alone but as part of complete assessment and treatment program and that it can be a significant factor in determining appropriate treatment.

The juvenile court rejected NDHHS’ case plan and did not order Mitchell to participate in PPG. NDHHS appealed to the juvenile review panel. The review panel held that not ordering Mitchell to participate in PPG was not in the best interest of the child.

Mitchell appealed the review panel’s decision. He assigned as error the reversal of the juvenile court by the review panel ordering that he participate in PPG and that it was in the best interest of the child.

The Court of Appeals stated that the juvenile court has discretion over recommendations made by NDHHS but it also grants preference in favor of the department’s plan. Neb. Rev. Stat. 43-285(2). The Court of Appeals determined that Mitchell presented no evidence proving by a preponderance of the evidence that NDHHS’ plan was not in the best interest of the child. The Court of Appeals noted that Mitchell objected to the plan on the basis that the test results might not be admissible as substantive evidence at some future hearing. The Court also noted that NDHHS did not attempt to offer any test results as substantive evidence. Therefore, the Court found that Mitchell failed to meet his burden in proving that NDHHS’ plan was not in the best interest of the child.

 

In re Interest of Bianca H. & Eternity H., Nos. A-08-651, A-08-652
http://www.supremecourt.ne.gov/opinions/2008/november/nov25/a-08-651.pdf
Decided November 25, 2008

The mother, Victoria, appealed the juvenile court’s order denying a motion to transfer the juvenile court matter involving her children to the Rosebud Sioux Tribal Court. The state opposed the motion to transfer. The Court of Appeals found that the juvenile court did not abuse its discretion and that good cause had been shown by the state to deny the transfer based the fact that the children did not meet the requirements of tribal enrollment at the time of the hearing and because the tribe testified that it would not seek a transfer due to a lack of services for the children.

Victoria’s children, Bianca and Eternity, were removed from the home which also included their father, Antonio. The children were adjudicated pursuant to 43-247(3)(a). Subsequently a motion to terminate was filed. The Rosebud Sioux Tribe filed a motion to intervene at that time.

Victoria appealed and argued that the court erred in failing to transfer the matter to the tribe. The standard applied in a denial of a transfer of juvenile case to a tribe is an abuse of discretion. A showing of an abuse of discretion requires a showing that the judge elected to act or refrain from acting and the option selected unfairly deprives a litigant of a substantial right or a just result in the matter. The Court of Appeals found that there was no abuse of discretion.

In reviewing this matter, the Court of Appeals looked at several factors in the juvenile court’s decision. A motion to transfer can be denied for good cause shown under 43-1504(2). The motion to transfer the matter to the tribe was not filed by the tribe but by both parents. After the adjudication, the tribe intervened. At the hearing regarding the parents’ motion to transfer, the tribe testified that it did not attempt to intervene at the adjudication because the children at that time did not meet the requirements of enrollment. Subsequently the eligibility requirements were changed and the children would meet the requirements that were not yet enacted. The tribe testified that in analyzing whether it would seek to have the matter transferred, it contacted the agency that provides social services at the reservation, and found that it lacked the services and foster homes needed for the children and it declined to seek a transfer.

The Appeals Court found that because the children did not meet the requirements of tribal enrollment at the time of the hearing, good cause had been shown by the state to deny the transfer. The Court of Appeals stated that alternatively because the tribe testified that it would not seek a transfer due to the lack of services for the children good cause for the denial of the transfer would still be shown.

 

In re Interest of Anaya, S-07-1136, 276 Neb. 825 (2008)
http://www.supremecourt.ne.gov/opinions/2008/december/dec5/s07-1136.pdf
Decided December 5, 2008

The Appellants, parents of a newborn son, appealed from a juvenile court order requiring that newborn screening tests be performed pursuant to Neb. Rev. Stat. 71-524, and finding that continued detention of the minor child was necessary. The Court of Appeals concluded that the juvenile court’s order regarding the newborn screening was proper but that insufficient evidence was presented for it to obtain jurisdiction under 43-247(3)(a). The Court of Appeals dismissed the appeal as moot, but the determination on the issues was based on the public interest exception to the mootness doctrine.

Because the matter was dismissed by the juvenile court after the results of the screening test and the child was returned home, the state filed a motion to have the matter dismissed due to mootness. The Court of Appeals relied on the public interest exception to the mootness doctrine in denying the state’s motion. A court may review a matter in spite of mootness if there is a showing that it affects the public interest or when other rights or liabilities may be affected by its determination. In determining whether a case involves a matter that involves the public interest the court looks at: (1) the public or private nature of the question; (2) the need for future guidance for public officials in the future; (3) the likelihood of a recurrence of the same or similar issue. The court found that the issue involves the health and welfare of all of the state’s children, that resolving any constitutional issues will assist state officials, and the likelihood of the issue recurring for the Anaya’s is likely to arise because they are still of childbearing age.

The Anaya’s assigned numerous errors to the appeal. The Court of Appeals addressed two of the errors assigned by the Anaya’s. The first assignment of error was that the requirement of the newborn screening statute, Neb. Rev. Stat. 71-524, infringed on the Anaya’s freedom to exercise their religion in violation of the Nebraska Constitution. The second assignment was that the juvenile court did not receive sufficient evidence to adjudicate their child under 43-247(3)(a) and order his continued detention.

The Anaya’s argued that the standard of strict scrutiny as opposed to a rational basis should be applied in their challenge based on the freedom of religion to the constitutionality of the state statute requiring the newborn screening tests. The Anaya’s relied on a prior case regarding a free exercise of religion that applied strict scrutiny. The Court of Appeals distinguished this case and stated that at the time of the decision on that case, a different standard existed as per the Religious Freedom Restoration Act which was subsequently found unconstitutional. The rational basis standard was reinstated.

The Court of Appeals further found that the language regarding the free exercise of religion in the U.S Constitution and the Nebraska Constitution prohibit the interference in religion. In making this determination, the Court found that because the same rights are protected in the Nebraska Constitution as in the Free Exercise Clause of the federal statute the same standard should be used, rational basis.

After determining the level of scrutiny, the Court decided if the application of the statute was neutral. The court relied on its analysis in a prior appeal involving the Anaya’s regarding the same issue. In that matter, the Court found that because the State has an interest in the health and welfare of all children in Nebraska and that a rational basis exists for the law. The Court of Appeals concurred with the finding of the first Anaya appeal and found the statute to be constitutional.

The enforcement of the statute under the juvenile code was found to be compatible. In reconciling the language of enforcement of 71-524 (requiring newborn screening tests) and the exclusivity of 43-247(3)(a), the Court found that the objective is to harmonize the language of conflicting statutes. Section 71-524 instructs enforcement through the district court or other remedies available through the law. The Court of Appeals found that the juvenile court was an appropriate place for enforcement as its goal is to provide for the safety and physical well-being for all juveniles. But the Court of Appeals noted that it is only a proper place of enforcement if there are other indicators of neglect.

While the Appeal Court determined that generally the juvenile court was compatible with the enforcement mechanism of 71-524, the Court disagreed with this juvenile court acquiring jurisdiction to proceed pursuant to 43-247(3)(a). At the adjudication stage, the State was required to show that jurisdiction over the juvenile was proven by a preponderance of the evidence, and if the standard is not met, then further orders of the juvenile court are null. Because the State failed to meet its burden, enforcement under the juvenile court should have not succeeded.

The evidence presented regarding the case worker’s visit to the family home showed that the child appeared healthy and all needs were being met. There was no evidence of a definite risk of future harm that required the child’s continued detention and this was not an emergency situation requiring continued detention.

Legislative Action

Safe Haven

On November 21, 2008, the Unicameral, during a special session, amended Nebraska’s safe haven law to limit the age to up to 30 days. Testimony was received from various groups including parents and service providers regarding the lack of resources available for behavioral and mental health services. At the conclusion of the session, a task force was developed to address these issues. Additional information about the status of the task force and related legislation for 2009 will be provided to listserv members as it becomes available.

Click here to read the bill

Click here to read the testimony from Nebraska Appleseed.

ANNOUNCEMENTS

Cultural Competency Training, offered by the Honorable Judge Wadie Thomas on January 22, 2008 at the Douglas County Civic Center in room 702, from 8:30 -4:30. Contact Debbie.Peck@douglascounty.ne.gov to register.

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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