How to Change the Child Welfare World: Systemic Reform and Resources for Lawyers

1. How to Change the Child Welfare World:Systemic Reform and Resources for Lawyers Nebraska Appleseed Center for Law in the Public Interest Sarah Helvey, J.D., M.S.

2. Roadmap • What is Nebraska Appleseed? • What is the Foster Care Reform Legal Resource Center & What Can It Do For You? • Overview of Systemic Reform Issues in Nebraska • Case Law and Legislative Update • Discussion and Questions

3. What is Nebraska Appleseed? • Nebraska Appleseed was founded in 1996 • A non-profit non-partisan public interest law firm • Mission: To achieve systemic change for underrepresented constituencies • Work: Class Action litigation, Impact litigation, Public Policy Advocacy, Community Outreach & Education • Staff: Lawyers, social worker, community organizers, technical support/webmaster, administrator, law clerks & volunteers • National Appleseed and the Appleseed Network Core Values. Common Ground. Equal Justice.

4. Program Areas • Low-Income Self-Sufficiency • Immigrant Integration and Civic Participation • Child Welfare System Accountability • Access to Justice • Building Democracy

5. Child Welfare System Accountability Program Goal: • To protect the legal rights of children in foster care and to work for lasting and meaningful reform of the system.

6. Child Welfare System Accountability Program • Projects: • Policy • Litigation • Legal Resource Center

7. Foster Care ReformLegal Resource Center

8. Foster Care Reform Legal Resource Center Goal: • 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.

9. Foster Care ReformLegal Resource Center Who: • GALs & attorneys representing biological and foster parents What: • Legal research on constitutional or statutory issues implicating targeted systemic issues in the system • Information on child welfare reform that is occurring across the state and nationally, including case law and legislative developments • Co-counseling, intervention, and development of amicus briefs in selected cases involving systemic policy issues • Nebraska child welfare listserv featuring regular updates and the opportunity to dialogue with other juvenile lawyers across the state on issues faced in your practice In the future, the legal resource center will also provide: • Collaborative trainings • Resources including sample pleadings and briefs

10. Foster Care ReformLegal Resource Center Why: • To assist attorneys in addressing systemic issues which arise in their juvenile court practices & connect with other lawyers working to improve the child welfare system How: • To join the Nebraska Child Welfare Listserv – • Sign up sheet • http://www.neappleseed.org/lrclist

11. Systemic Reform Issues

12. Relative Placement • State and federal statutory requirements for preference for relatives. • In Nebraska, approximately 20% of children in out-of-home placement are placed with relatives, while 80% are placed with non-relatives. • The “late arriving relative” scenario • Relative placements must be prioritized early in the process. • Appleseed Issue Brief

13. GAL Standards • Sup. Ct. Commission Proposal • LB 68, LB 535, & LB 556 • Proposed Sup. Ct. Rule • Currently under review

14. GAL Standards Dual Role • Where a juvenile expresses a preference which is inconsistent with the GAL’s determination of BI, the GAL shall assess whether there is a need to request the appointment of a separate legal counsel. • The Proposed Guidelines include factors the GAL shall consider in making this assessment. • After making the assessment, the GAL shall request the court to make a determination whether special reasons exist for the court to appoint separate legal counsel. • If the court exercises this authority, the GAL shall continue to advocate for the juvenile’s best interest.

15. GAL Standards • Testifying • The GAL may testify only to the extent allowed by the Nebraska Rules of Professional Conduct • Children in Court • The GAL should advocate for the juvenile to be present at all court hearings as appropriate, and take steps where necessary to insure attendance on the part of the juvenile. • Consultation with Juvenile • The GAL should consult with the juvenile in addition to the statutorily required intervals: • At juvenile’s request, emergency or change of circumstances, prior to any hearing addressing substantive issues, home visit to each placement at least once.

16. GAL Standards • Caseloads • The GAL should not accept caseloads or appointments to serve as a GAL 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. • Attorney Compensation • The Supreme Court may establish a statewide uniform minimum hourly rate of compensation for GALs.

17. Case Law Update

18. Case Law Update • Nebraska Court of Appeals and Supreme Court cases dating back to July 2006 • Only cases raising systemic issues in the child welfare system • Full summaries available

19. In re Interest of Markus K. & Justin K.A-06-1050 & A-06-1051Decided April 17, 2007Not designated for permanent publication • If TPR on multiple grounds including 15/22 and trial court correctly found 15/22, the Court of Appeals need not consider other grounds. • Incarceration of a parent is not enough by itself to TPR, but it is proper for the court to consider a parent’s inability to perform his or her parental obligations because of imprisonment.

20. In re Interest of Vincent P.A-06-786Decided March 13, 2007 • It was not an abuse of discretion for the trial court to order that therapy with ongoing therapist be terminated and that an “independent person” (i.e., a new therapist) evaluate Vincent. • It was not error for the trial court to fail to adopt DHHS’ recommendation to terminate jurisdiction. • Under §43-385(2), the court may modify the (department’s) plan, order that an alternative plan be developed, or implement another plan that is in the juvenile’s best interest.

21. In re Interest of Amoria M. et al.A-06-771Decided February 27, 2007Not designated for permanent publication • § 43-288 places a one year time limitation for conditions imposed upon children who are allowed to remain in the family home. The Court of Appeals held that because, in this case, hearings regarding the family were held every three months and the conditions imposed on the family were slightly different at each hearing, there was no violation of §43-288. • In addition, DHHS argued that under In re Interest of D., 209 Neb. 529 (1981), the court could not “deprive a parent of the custody of a child merely because the parent has limited resources or financial problems.” The Court of Appeals noted that the cited case concerned a TPR, not the trial court’s right to maintain jurisdiction and found that terminating jurisdiction would not be in the children’s best interest in the present case because the parents had failed to meet the permanency objective of maintaining steady employment and housing.

22. In re Interest of Hailey M.15 Neb. App. 323 (2006)Decided January 17, 2007 • Appellant father appealed from a second motion for visitation. The court found that because the father did not appeal from the first order, but subsequently filed a second motion from which the father appealed, the second appeal was simply an attempt to appeal after the time for appeal (on the first motion) had expired. Because the second order was merely a continuation of the original order, the second order did not affect one of the father’s substantial rights and therefore the court lacked jurisdiction to consider the father’s claim that the trial court erred in denying him visitation. • The Court of Appeals concluded that the trial court did not err in failing to order the Department to consider “any and all relative placements” for Hailey because the evidence showed that the Department was in the process of considering the father’s sister as a placement for Hailey and the caseworker testified that several family members had been considered.

23. In re the Interest of Deztiny C.15 Neb. App. 179 (2006)Decided November 15, 2006 • The Court of Appeals held that because the caseworker did not contact or return phone calls to the father (re: visitation), the father’s failure to connect with his child, a state ward, was due to just cause and not intentional abandonment. Because DHHS did not provide the father with information on how to intervene, the father was acting with a lack of knowledge and his failure to intervene could not constitute abandonment.

24. In re Adoption of Kenten H.272 Neb. 846 (2007) Decided January 5, 2007 • ICWA and NICWA apply only prospectively from the date that Indian Child Status is established on the record. • Because ICWA and NICWA apply only prospectively, no action taken before that date may be invalidated due to non-compliance with ICWA or NICWA. • The Nebraska Supreme Court refused to determine whether the “Existing Indian Family” exception to ICWA applies in Nebraska.

25. In re the Interest of Veronica H.272 Neb. 370 (2006)Decided September 29, 2006 • The Nebraska Supreme Court held that the provision, “by and with the assent of the court,” in §43-285(1) implicitly means that the juvenile court has the power to dissent from a decision made by DHHS. • The juvenile court, therefore, can require DHHS to assign a case manager who is competent in the type of case being handled.

26. In re the Interest of Walter W.14 Neb. App. 891 (2006) Decided July 11, 2006 • The Court of Appeals held that parents have standing to raise the issue of the state’s failure to comply with the notice requirements of ICWA and NICWA. • The Court reasoned that because in many, if not most, cases, tribes depend on parents to notify the state of known or potential Indian ancestry, and because Indian tribes cannot intervene in cases where they receive no notification, logic dictates that parents may often be the best situated to raise claims of inadequate notice to tribes.

27. Legislative Update

28. Legislative Update • 2007 Legislative Session • 100th Legislature, first session • Adjourned sine die on Thurs. May 31, 2007 • Only bills raising systemic issues in the child welfare system

29. Legislative Update Recap: • Bills monitored: 19 • All 19 were given a hearing • Appleseed testified on nine • Of the 19, six bills were voted out of committee • Two bills made it to final vote. Both were passed by the legislature and signed into law by the governor • LB 296 to reorganize HHS • LB 457 to require a Caregiver Information Form for foster care proceedings • LB 461 the foster parent’s “bill of rights” moved to Select File • Of the 19, 13 did not advance out of committee • Still “on the table” for next session • Except four bills which were “indefinitely postponed”

30. Legislative Update LB 457 – Require a Caregiver Information Form for Foster Care Proceedings • Passed by the Legislature (39-0) on April 19, 2007 and approved by the Governor on April 25, 2007 • Requires the Supreme Court to develop a form that will be given to foster parents, pre-adoptive parents, guardians, and relatives caring for a child. • The form will be distributed at the same time that such person is given notice of an upcoming juvenile court review hearing.

31. Legislative Update LB 457 – Require a Caregiver Information Form for Foster Care Proceedings • The law requires that the form to include: • The child’s name, age, and date of birth • Information on the placement, how long the child has been with the caregiver, the child’s emotional condition and educational status, the status of the child’s medical and physical condition, the child’s social skills and peer relationships, and whether the child is receiving all necessary services. • The date and place of each visit by the caseworker with the child and a description of the method by which the GAL has acquired information about the child. • The caregiver’s impression of the child’s reactions before, during, and after visits with the parent and whether or not the caregiver can make a permanent commitment to the child if the child does not return home. • The form will be made a part of the court record at the hearing.

32. Legislative Update Interim Studies Introduced: • LR 97 – Interim study to direct the Judiciary Committee to review the North Carolina statewide guardian ad litem system. • LR 157 – Interim study of the foster care system. • LR 163 – Interim study to examine ways to increase the pool of potential foster parents. • LR 200 – Interim study to examine the guardian ad litem statutes and proposals for reform of the juvenile legal services system. • LR 201 – Interim study to examine policies with regard to non-English speaking families in the Nebraska child welfare system. • LR 208 – Interim study to provide additional recommendations relating to the reorganization of the Nebraska Health and Human Services System.

33. Foster Care ReformLegal Resource Center Discussion: Issues that have arisen in your practice?

34. Foster Care ReformLegal Resource Center Question: How to Change the Child Welfare World? Answer: • Get involved with us! • Start by signing up for the listserv • Raise issues in your individual cases • Resources are available! • Work for legislative and other policy reform • Your “frontline” professional expertise is valuable!

35. For more information… • Nebraska Appleseed Foster Care Reform Legal Resource Center http://www.neappleseed.org/lrc • Nebraska Appleseed Child Welfare System Accountability Program http://www.neappleseed.org/children • The photos included in this presentation are from Nebraska Appleseed’s grassroots photography project, “Reality at the Roots.” See the complete exhibit at http://www.neappleseed.org/roots. Core Values. Common Ground. Equal Justice.

36. Nebraska Appleseed Center for Law in the Public Interest Sarah Helvey, J.D., M.S. 941 “O” Street, Suite 920 Lincoln, NE 68508 (402) 438-8853 shelvey@neappleseed.org www.NeAppleseed.org/lrc Core Values. Common Ground. Equal Justice.