SW Academy Legal Training

1. SW AcademyLegal Training Part One: Establishing a Dependency

2. Before you file Legal authority – federal Legal authority - state Child abuse/neglect defined Confidentiality Collaboration Reasonable efforts

3. Legal authority – Federal • Child Abuse Prevention and Treatment Act (CAPTA) Requires states to implement procedures for reporting suspected abuse and neglect, investigating such reports and taking steps to protect children found to be at risk of harm. • Title IV of Social Security Act • Federal law that provides funding for family preservation, foster care and adoption support. • Requires states receiving funding to provide “reasonable efforts” to keep families together and to reunite them when children are placed out of the home. • Requires that a child’s safety be the paramount consideration in child welfare cases. • Requires states file a termination petition when a child has been in out-of-home care for 15 of the most recent 22 months, unless compelling reason otherwise. • Indian Child Welfare Act (ICWA) • Recognizes the heightened importance of maintaining an Indian child’s connection with his or her Indian tribe. And “Indian child” is one who is a member of a federally recognized tribe or is eligible for membership and is the biological child of a tribal member. • Sets standards for the removal of Indian children, priorities for placement of Indian children, and requires notice of dependency and termination proceedings to the tribe of an Indian child.

4. Legal authority – State • DSHS is the agency required to provide child welfare services, and shall: • investigate complaints of ca/n • offer child welfare services regarding ca/n to families or bring the problem to the attention of the courts • have authority to accept custody of children from parents and juvenile court • monitor out-of-home placements

5. Legal authority – State (cont.) • RCW 13.34.020 • The family unit should remain intact unless a child's right to conditions of basic nurture, health, or safety is jeopardized. Basic nurture includes the right to a safe, stable, and permanent home and a speedy resolution of dependency and termination proceedings. • When the child’s rights of basic nurture, physical and mental health are in conflict with the legal rights of the parents, the rights and safety of the child should prevail. • Washington State Indian Child Welfare Act (ch. 13.38 RCW) • Defines “active efforts” and “best interests of the child” • Requires a good faith effort to determine whether a child is an Indian child

6. Child abuse/neglect defined • "Abuse or neglect" means sexual abuse, sexual exploitation, or injury of a child by any person under circumstances which cause harm to the child's health, welfare, or safety, excluding lawful physical discipline; or the negligent treatment or maltreatment of a child by a person responsible for or providing care to the child. • "Negligent treatment or maltreatment" means an act or a failure to act, or the cumulative effects of a pattern of conduct, behavior, or inaction, that evidences a serious disregard of consequences of such magnitude as to constitute a clear and present danger to a child's health, welfare, or safety.

7. Confidentiality • Information about the child that is collected or retained by the Department is confidential. It may only be released to individuals or entities specified in the statute, such as parents or “juvenile justice or care agencies” (e.g., police, court, prosecuting attorney, defense attorney, attorney general, any public or private agency with custody of the child). • Upon request, the Department is required to provide all records and information collected or retained by it that pertains to the child to the child, the child’s parents, or the child’s or parents’ attorneys, except: • when the release of the information would likely cause severe psychological or physical harm to the child or his or her parents, or • if the records relate to voluntary services that the child was legally entitled to obtain without parental consent.

8. Collaboration You may conduct ongoing case planning and consultation with mandatory reporters, and with designated representatives of Washington Indian tribes, if the client information exchanged is pertinent to cases currently receiving child protective services

9. Reasonable efforts Reasonable efforts to prevent removal means offering services to prevent or eliminate the need for the removal of the child from the home. These include: • Reasonably available preservation services, including housing services, capable of preventing or eliminating the need for out-of-home placement.

10. Activity Small Group Discussion (5 mins.): • At the time of the filing of the dependency petition, what reasonable efforts to prevent removal had been made in this case? • In your opinion, was this enough? Why/why not? • What might you have done differently? Report back to large group

11. When you file Court structure Dependency petition Dependency defined “Indian child” defined Service of the petition Removal Requirements for pick-up order Requirements for protective custody AAG consult

12. Court structure STATE SUPREME COURT COURT OF APPEALS SUPERIOR COURT Juvenile Court is a division of Superior Court

13. Dependency petition • Initiates court involvement • Anyone may file • Must address each parent, guardian, or custodian • Must address the child’s Indian status • Must allege that a child meets the legal definition of “dependent child”

14. Dependency defined A dependent child is one who: • (a) Has been abandoned, or • (b) has been abused or neglected, or • (c) has no capable parent or guardian, such that the child is in circumstances which constitute a danger of substantial damage to the child's psychological or physical development

15. “Indian child” defined • Under ICWA, an “Indian child” is someone under 18 years of age who: • Is a member of a federally recognized tribe OR • Is eligible for membership in a federally recognized tribe and whose parents are tribal members • Department policy is to apply a broader definition of “Indian child” that includes children with Indian heritage, even if they don’t meet the definition above. The Department applies its ICW policies to these children for case-planning purposes, but this is not a legal or court requirement.

16. Service of the petition • Personal service • 15 court days prior to fact-finding • only exception – out-of-state parent • Via certified mail • received 15 days prior to fact-finding • Publication • following due diligence • 1st date of publication must be 25 days prior to fact-finding

17. Removal Children may be taken into custody by: • court order (pick-up order) • law enforcement protective custody (PC) • Agreement of the parent (VPA) • Hospital administrator or physician (hospital hold)

18. Requirements for pick-up order • A dependency petition and sworn statement supporting the pick-up order have been filed • There are reasonable grounds to believe the child’s health, safety, or welfare will be seriously endangered if not taken into custody • There are reasonable grounds to believe the child is dependent

19. Requirements for protective custody There is probable cause to believe that the child is abused or neglected AND • The child would be injured OR • The child could not be taken into custody if it were necessary to first obtain a court order

20. AAG Consult • You can consult with your AAG to discuss whether your case is legally sufficient, and whether you have sufficient facts to support removal of the child. • When you do so, please keep in mind the following: • The AGO is an independent state agency. • The AGO does not represent individual social workers, but instead represents DSHS and the people of the State of Washington. • Your AAG can advise you regarding legal sufficiency, but cannot make policy decisions for you. • Your communications with your AAG are protected by attorney-client privilege, but you can waive this by telling people outside your agency about our privileged conversations. • If you are considering a settlement of your case, you need to discuss this with your AAG before you agree.

21. Activity AAG Consult Demonstration (10 mins.) • What are each parent’s parental deficiencies? • Were reasonable efforts made to prevent removal, and if so how as to each parent? • Would you request removal of each child, and if so how would you support that decision? • What is the current status of custody as to each child, and how does this affect the risk of harm posed by each of the parents?

22. Shelter care Legal standard Timing SW obligations before hearing In the courtroom Discovery Court’s considerations

23. Legal standard Court may order out-of-home placement if it finds reasonable cause to believe that: • Services were offered to prevent or eliminate need for removal, AND • No parent or guardian is available to care for the child OR • Release of the child to the parent presents a serious threat of substantial harm to the child

24. Timing Initial shelter care hearing must occur within 72 hours of placement, excluding Saturdays, Sunday and holidays

25. SW obligations before hearing • Make reasonable efforts to provide notice to parents of shelter care hearing • Notify tribe, if Indian child under ICWA • Prepare discovery • Perform due diligence to locate a relative placement • Attempt to facilitate visitation

26. In the courtroom • Key players: • Judge/Commissioner • Court Reporter • Judicial Assistant/Bailiff • Social Worker • AAG • Parent • Parent Attorney • CASA/GAL • Other interested people: • Tribal representative • Child • Child attorney • Foster parents • Relatives • Friends and family • Service providers

27. Discovery • The Department must provide the parent or parent’s attorney with a redacted copy of records pertaining to the child that are retained by the Department at a reasonable time before the shelter care hearing. • Provide an unredacted copy to your AAG, as well.

28. Court’s considerations • Court will appoint attorneys to indigent parents • Court will appoint GAL / CASA • Court may set case conference • Reasonable efforts to prevent the need for removal • Placement, including: • Appropriate relatives? • Suitable person? • Can child safely remain in the home if non-offending parent obtains a protective order? • Visitation – parent and sibling • For children in grades 6 through 12, the Department will identify an Educational Liaison.

29. Activity Small group discussion (10 mins.) • How would you explain imminent risk of harm to Serena if she were released to either parent’s care at shelter care? • How would you explain imminent risk of harm to Zoe if she were released to either parent’s care at shelter care? • How can you put your best foot forward in court so that you are more credible? Report back to large group

30. Dependency fact-finding and dispositional hearing Legal standard “Indian” child Timing Evidence rules Settlement Working with your AAG Testifying Dispositional hearing Placement Visitation Services

31. Legal standard • Whether the child meets the definition of a “dependent child” by a preponderance of the evidence. • Remember, a dependent child is one who: • (a) Has been abandoned, or • (b) has been abused or neglected, or • (c) has no capable parent or guardian, such that the child is in circumstances which constitute a danger of substantial damage to the child's psychological or physical development.

32. If “Indian” Child • The Department is required to notify the child’s tribe or tribes of the dependency action by certified mail, return receipt requested and by use of a mandatory Indian child welfare act notice. • In involuntary foster care and termination of parental rights proceedings involving an Indian child the following are required – • Proof that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful. • A determination, supported by testimony of qualified expert witnesses, that the continued custody of the child by the parent is likely to result in serious emotional or physical damage to the child. • These 2 elements need to be proved by clear, cogent and convincing evidence.

33. Timing • Hearing must be held within 75 days of petition being filed unless exceptional circumstances exist. • Courts interpret “exceptional circumstances” differently.

34. Evidence rules • Evidence rules apply in the dependency fact-finding hearing. • Hearsay is not admissible. • Impact on your case: • Witnesses who heard parents make admissions may have to testify. • Witnesses who experienced or observed abuse or neglect firsthand may have to testify, unless exception applies. • May need to call providers, neighbors, family members, child.

35. Settlement • Where an agreement can be obtained that protects the safety of the child and is legally sufficient based on the evidence, it will be pursued. • An agreed order is a settlement. Agreed dependency orders are subject to the approval of the court, and the court must find that the parent knowingly and voluntarily entered into the agreement and understands its consequences. • (b) versus (c) considerations

36. Working with your AAG When preparing for a dependency fact-finding trial, you may want to: • Create a timeline of the case and send a copy to your AAG (1-2 pgs.). • Request the AAG send you a list of questions you will be expected to answer. • Send the AAG a proposed witness list identifying the name, address, phone number, role in the case, and summary of the expected testimony.

37. Testifying Do: • Dress appropriately • Be truthful…even if it hurts • Be prepared to testify as the expert • Take your time • Keep in mind your audience • Speak in plain language • Answer the question asked • Stick to your guns! Don’t: • Argue • Get mad • Assume anything • Answer a question with a question • Equivocate • Give vague answers • Speculate • Agree to inaccurate language

38. Dispositional hearing • May be delayed up to 14 days after fact-finding for good cause • Court will enter orders regarding: • Placement • Visits (with parents and siblings) • Services • Evidence rules need not apply at dispositional hearing

39. Placement To order out-of-home placement, the court must find that reasonable efforts have been made to prevent removal from the home, AND • There is no parent willing or available to care for the child OR • clear, cogent, and convincing evidence supports a finding that a manifest danger exists that the child will suffer serious abuse or neglect if not removed

40. Placement (cont.) A child placed out of a parent’s home must be placed: • with a relative willing and able to care for the child, with whom the child has a relationship and is comfortable • with a suitable person with a significant relationship with the child • in a licensed foster home

41. Visitation • Visitation with parents and siblings is a right. • It is presumed that visitation is in the child’s best interest. • Visits may not be conditioned on compliance with services or cooperation with DSHS.

42. Services • Order must set out clear requirements for compliance and progress, and timeline for completion. • If the parent is unable to pay, DSHS is required to provide funds for remedial services to the extent funding is available to it for such specific services. • Remedial services are time-limited family reunification services, including: • individual, group, and family counseling; • substance abuse treatment services; • mental health services; • assistance to address domestic violence; • services designed to provide temporary child care and therapeutic services for families; • and transportation to or from any of the above services and activities. • If court-ordered remedial services are unavailable for any reason, including lack of funding, lack of services, or language barriers, DSHS is required to promptly notify the court that the parent is unable to engage in the treatment due to the inability to access these services.

43. Activity Review Social Worker testimony: pgs. 519-21 pg. 533 lines 7-19 pgs. 534-38 pg. 548 line 12-24 pg. 552 line 15 – pg. 553 line 11 pg. 555 pg. 559 line 20 – pg. 560 line 2 pg. 563 pg. 564 – pg. 565 line 1 pg. 574

44. Activity (cont.) Review Detective Testimony: pgs. 24-28 pg. 29 pg 33 line 25 – pg. 34 line 21 pg. 37 – pg. 40 line 14 pg. 49 line 16 – pg. 50 line 15 pgs. 60-66 pg. 83 line 16 – pg. 85 line 15

45. Activity (cont.) Large group discussion: • What hurt the credibility of the witnesses? • What helped it? • Whose testimony was more effective, and why?

46. Other considerations Liability Sanctions Humanistic litigation Goal of dependency

47. Liability • What is a tort? It is a civil wrong for which the law may award monetary damages. • Negligence – The failure to exercise ordinary care, doing some act which a reasonably careful person would not have done, which then causes harm to a person that results in damages. • Intentional torts • Civil rights violation – Children have a constitutional right to be free from an unreasonable risk of harm and to have their basic needs met. Failure to ensure that these rights are protected could be a civil rights violation. • What if a SW is sued? • State employees are defended by the AG’s Office and all costs of representation and resolution are paid by the State when the acts or omissions of the employee were in “good faith” and within their scope of employment or official duties. • Representation can be denied if the employee engaged in misconduct or personal business. Bottom line – Solid, defensible mistakes will occur. Apply critical thinking at key decision points. Review all necessary documents before making your decisions. Document your decision-making process. Be prepared to articulate and defend your decision.

48. Sanctions • How can a person be sanctioned by the court? • The written court order includes the court’s ruling regarding what action should be taken in a case. A person can be sanctioned for violating or failing to comply with the court order. • What happens if a person is sanctioned? • Contempt of court: financial sanctions, detention, etc. • Who may be sanctioned? • Sanctions may be imposed on a non-compliant person, including a child, Social Worker, or parent.

49. Humanistic Litigation • Adversarial system • Encourage getting parents invested early • Avoid child witnesses, when possible • Difficult questions will be asked • Settlement is generally better than a contested hearing • Dealing with most vulnerable population – avoid humiliation

50. Goals of dependency • Protect the safety and welfare of the child. • Reunify the child with a capable parent. • Where reunification cannot or does not occur, ensure stability in the child’s life and permanency as soon as possible.