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Dependency Basics

Dependency Basics. Dependency and Termination Commissioner Thurman W. Lowans and Carrie Hoon Wayno, AAG October 2012. LAWS OF THE UNIVERSE. Left to themselves, things always go from bad to worse. If everything seems to be going well, you obviously overlooked something.

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Dependency Basics

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  1. Dependency Basics Dependency and Termination Commissioner Thurman W. Lowans and Carrie Hoon Wayno, AAG October 2012

  2. LAWS OF THE UNIVERSE • Left to themselves, things always go from bad to worse. • If everything seems to be going well, you obviously overlooked something. • In unanimity, there is cowardice and uncritical thinking.

  3. Dependency Lingo AAG CASA CDMHP ASFA CPT ARY FHSS FRS GAL ICWAC IEP MDT OSE MSW SSODA CHINS RA SA SCRC TANF WIC TCC SER PN TPR ILP ICW CWS DVR

  4. Dependency • RCW 13.34 et seq

  5. Dependency • Exclusive Jurisdiction • Safety • Child’s Well-being • Permanence

  6. Legislative Declaration • The family unit is a fundamental resource of American life which should be nurtured. • The family unit should remain intact unless a child's right to conditions of basic nurture, health, or safety is jeopardized. • When the rights of basic nurture, physical and mental health, and safety of the child and the legal rights of the parents are in conflict, the rights and safety of the child should prevail. • In making reasonable efforts under this chapter, the child's health and safety shall be the paramount concern. • The right of a child to basic nurturing includes the right to a safe, stable, and permanent home and a speedy resolution of any proceeding under this chapter.

  7. Dependency • Dependent Child: • Abandoned • Abused or Neglected • No Parent Capable of Care and Substantial Danger to Child

  8. Dependency • Participants • Parents, Custodian or Guardian • Guardian Ad Litem/CASA • DSHS • Attorneys for All • Service Providers • Foster Parents • Relatives

  9. Open Dependency Law • Dependency and Termination Hearings are Open to the Public. RCW 13.34.115 • Discretion to Close– Best Interests of Child • No Access to Files

  10. ICWA definition of “Indian child” • ICWA applies to children who fall within legal definition of “Indian child.” • A person under eighteen years of age who is either: • (a) A member of an Indian tribe; or • (b) eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.

  11. Order to Take Child • Upon showing of “Imminent Harm” • Sexual abuse or exploitation • Failure to perform basic parental functions, obligations and duties as the result of substance abuse • When possible, DSHS must notify Indian child’s tribe before removal, and if that is not possible, by the quickest means possible.

  12. Shelter Care Hearings • 72 Hours • Release/return Child unless Order • Give Rights to Parents • Appoint GAL/CASA • Rules of Evidence Do Not Apply

  13. Practice Tips: • Ask parents early and often about Indian Heritage – ICWA issues • Ask parents early and often about Relatives and Suitable Persons for placement resources • Ask parents early and often about Relatives/other Adults as resources for visitation • Tell parents your expectations for next Hearing

  14. Notice to Tribe • In any involuntary child custody proceeding, the petitioning party must notify the child’s Tribe(s) if: • the court or DSHS know or have reason to know a child is or may be an Indian child. • Notice must be by certified mail, using the mandatory ICWA notice form.

  15. Shelter Care Hearings In non-ICWA case, Court must Release/return Child unless Court finds Reasonable Cause to believe • That Reasonable Efforts to prevent/avoid Removal have been made, and: • There is No parent to provide supervision and care; or • Return of child would present serious threat of substantial harm; or • The Parent has been charged with custodial interference

  16. Shelter Care Hearings In ICWA case, Court must Release/return Child unless Court finds Reasonable Cause to believe • That Active Efforts to prevent/avoid Removal have been made, and: • There is No parent to provide supervision and care; or • Return of child would present serious threat of substantial harm; or • The Parent has been charged with custodial interference

  17. Shelter Care Hearing • 30 Day Maximum • Modified on Substantial Change in Circumstances • Relative Placement • Safety and Welfare of Child • DSHS Case Conference May Be Scheduled

  18. Fact Finding Hearing • Fact Finding within 75 days • Rules of Evidence Apply • Preponderance of the Evidence • If Indian child, must also prove by clear and convincing evidence that continued custody is likely to result in serious damage • Stipulation by Parent(s)

  19. Fact Finding Hearing • Stipulations by Parents • On the Record • In Writing and Signed by Parent • After Inquiry by Court and Findings as to Duress, Misrepresentation and Fraud

  20. Disposition Hearing • Often Occurs Jointly or Immediately After Fact Finding, but Must within 14 days of Fact Finding • Rules of Evidence Do Not Apply • Individual Service & Safety Plan (ISSP) • Dispositional Order • Placement Considerations • Review Hearing within 90 days or six months from beginning of placement, whichever is first

  21. ICWA Placement Preferences • In any foster care placement, a preference shall be given, in absence of good cause to the contrary, to the Indian child’s placement with: • A member of the child’s extended family; • A foster home licensed or specified by the child’s tribe; • A licensed or approved Indian foster home; • A foster care agency approved by an Indian tribe with a program suitable to meet the child’s needs; • A non-Indian foster care agency approved by the child’s tribe; • A non-Indian family committed to promoting extended family visits and maintaining the child’s relationship with the tribe.

  22. Dependency Review Hearing • Within 6 months of Last Review • Findings in re Compliance and Progress as to: • Parents • DSHS • Placement and Visitation Considerations • Schedule Review within 6 months

  23. Be a Squeaky Wheel • ICPC issues need to be followed • Status of evaluations and assessments • IEP and other issues for education of child • Sibling visitation • Medical evaluations for child • Stability of Placement for child

  24. In Home Placement • Contingent upon: • Compliance with court orders on care & supervision of child and • Continued participation in available substance abuse or mental health treatment if contributing factor RCW 13.33.138(2)(a)

  25. Removal From Home • Noncompliance with case plan or Order • Inability, unwillingness or failure to participate in services or treatment or • Failure to successfully and substantially complete available services or treatment RCW 13.34.138(2)(b)

  26. Removal After Return Home • Within 30 days of removal, the Court shall hold a Review Hearing to determine: • Whether Permanency Plan should be changed • Whether a Termination Petition should be filed • Such other action as may be warranted

  27. Permanency Planning Hearing • Within 12 months of Placement • Clear, Cogent and Convincing Evidence • Rules of Evidence do not Apply • Findings in re Compliance and Progress as to: • Parents • DSHS

  28. Permanency Planning Hearing • Placement Considerations • Permanent Plan: • Return Home • Adoption • Guardianship • 3rd Party Custody • Long Term Relative Care • Long Term Foster Care • Independent Living

  29. Permanency Planning Hearing • Issue Orders Concerning Permanent Plan • Deadline for Filing Petition for Termination • Hearing on Status of Return Home • Schedule Review within 6 months

  30. Racial/Ethnic Disproportionality • African American children are: • Almost twice as likely as Caucasian children to be referred to CPS • 1.2 times more likely to be removed from home • 1.5 times more likely be in care over 2 years

  31. Racial/Ethnic Disproportionality • Native American children are: • 3 times more likely than Caucasian children to be referred to CPS • 1.6 times more likely to be removed from home • 2 times more likely to be in care over 2 years

  32. Racial/Ethnic Disproportionality • Hispanic children are: • 1.3 times more likely than Caucasian children to be referred to CPS • No more likely to be removed from home • No more likely to be in care over 2 years

  33. Racial/Ethnic Disproportionality • Asian children are: • Less likely than Caucasian children to be referred to CPS • No more likely than Caucasian children to be placed into foster care • No more likely to be in care over 2 years

  34. Termination Trials • Rules of Evidence Apply • Clear, Cogent and Convincing Evidence • Beyond a Reasonable Doubt for ICWA Element • Trials Receive Docketing Priority • Dependency Continues until Permanency is Achieved

  35. Termination Trials • Child found Dependent • Dispositional Order entered • Out of Home at least 6 months • All necessary & reasonably available services offered or provided • Little likelihood of remedy to conditions to permit return within near future • Continuation of parent-child relationship clearly diminishes child’s prospects for integration into permanent home • Termination in child’s best interests

  36. Termination Trials • For Indian children, court can only order termination if it determines based on evidence beyond a reasonable doubt that continued custody of the child by the parent is likely to result in serious emotional or physical damage to the child. • Must include testimony of qualified exert witness, as defined by ICWA.

  37. Adoption & SafeFamilies Act (ASFA) • Safety and Permanency • Permanent Planning within 12 months • Reasonable Efforts to: • Prevent Removal • Reunify with Family • Effect Permanent Placement of Child

  38. Adoption & SafeFamilies Act (ASFA) • Petition for Termination to be filed: • In Foster Care 15 out of 22 months • Aggravated Circumstances are found • Unless Compelling Reasons found not to

  39. Indian Child Welfare Act (ICWA) • Exclusive Jurisdiction for Tribal Courts • Who is an Indian Child? • Right to Intervene • Failure to Follow ICWA

  40. Interstate Compact on Placement of Children (ICPC) • Out of State Placement by a Court • Safety and Oversight considerations • Referral to another State • Timing – Shelter Care –vs- Dependency • Timing – Response by another State

  41. Interstate Compact on Placement of Children (ICPC) • Out of State Placement with a Parent In Re Dependency of: D.F.-M Division I, No. 63624-3-I, August 2, 2010 A Brave New World

  42. On Line Resource • Court Improvement Training Academy www.uwcita.org Tim M. Jaasko-Fisher tjfisher@u.washington.edu

  43. It’s About The Kids

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