SW Academy Legal Training

1. SW AcademyLegal Training Part Two: Dependency Review Hearings and Permanency Planning

2. Review and permanency planning hearings Timing Issues before the court Visitation Permanent plans Return home Adoption Dependency guardianship Permanent legal custody

3. Timing • 1st review must be held within 90 days of dispositional hearing or 6 months from date of placement, whichever is sooner. • Subsequent review hearings are held every six months. • The first permanency planning hearing must be held 9 – 12 months from the date of placement, and then held at least every 12 months.

4. Issues before the court • Services • Have reasonable services been offered to facilitate reunification? • Have all parties complied with the service plan? • Has progress been made toward correcting parental deficiencies? • Are additional services necessary? • Ongoing active efforts if Indian child? • Placement • Is the placement appropriate? • Is there a continuing need for out-of-home placement? • Visitation • Has the child visited with parents and had contact or visits with siblings, and if not why not?

5. Visitation • Visitation with parents may only be limited or suspended if the court finds that it is detrimental to the child’s health or welfare. • If you are requesting that the court limit or suspend a parent’s visits, you must be able to answer this question: • How is the current visitation plan detrimental to the child?

6. Permanent plans • Return home • Adoption • Guardianship • Permanent legal custody • Long-term relative or foster care with written agreement • Responsible living skills program • Emancipation

7. Return home • Court must find parent is compliant with case plan, court orders, and treatment to order a child returned home. • Parent must maintain compliance with case plan and court orders to keep child in the home. • Child must be returned home under court supervision for 6 months prior to dismissal of the dependency.

8. Adoption • Prior to adoption all parents’ rights must be terminated or relinquished. • A termination petition starts a separate but related action from the dependency.

9. Title 13 Guardianship • Court must make same findings as in termination of parental rights by a preponderance of the evidence • Court must find that guardianship, rather than termination of parental rights or continued efforts to reunify, is in the child’s best interest • Dependency dismissed when Title 13 Guardianship is established

10. Permanent legal custody • A separate action • State is not a party to the action • Parties must hire their own lawyer • No right to counsel • Dependency dismissed once custody order is entered • Limited financial support to family

11. Extended Foster Care • Youth who turn 18 while in foster care can chose to remain dependent who are: • Pursuing their high school diploma or a GED; • Going to college or are in a vocational training program; • Engaged in an activity designed to remove barriers to employment (new category added in 2013) • If a youth’s dependency is dismissed at age 18, a youth can seek EFC services before age 19 by way of a VPA or filing a dependency petition. • Youth may only do so once. • A “Non Minor Dependent” is a youth between the ages of 18 and 21 who is receiving EFC services: court appointed attorney; case management services; 6 month review hearings; permanency planning hearings.

12. Activity Small group discussion (15 mins.): • At the 2nd review hearing / 1st permanency planning hearing, what would you recommend to the court and how would you support your recommendations to the court regarding: • Placement of each child • Visitation plan for each child • Service plan for each parent • Permanent plan for each child Report back to the large group

13. Activity (cont.) Demonstration of SW testimony at a review hearing Lessons learned?

14. Termination of Parental Rights Legal standard Timelines Good cause exception ICWA – Notice ICWA – Legal standard Termination as to both parents Common issues at trial

15. Legal standard • State must prove by clear, cogent and convincing evidence that: • The child is dependent • A disposition plan has been entered • The child has been removed from the parent’s custody pursuant to an order of dependency for 6 months • All services ordered and all necessary services reasonably available have been offered or provided • Little likelihood that parent will remedy parental deficiencies in the near future • Continuation of parent-child relationship diminishes child’s prospects for early integration into a permanent and stable home • Court must find that the parent is currently unfit. • Court must also find by a preponderance of the evidence that termination of parental rights is in the child’s best interest.

16. Timelines • Federal law – DSHS must file a termination petition if child has been placed out of the home for 15 of the last 22 months, absent a compelling reason otherwise. • State law – Juvenile court must order the filing of a termination petition if a child has been placed out of the home for 15 of the last 22 months since the date of the filing of the petition, unless good cause is found.

17. Good Cause Exception • Good cause exception includes but is not limited to: • Child is being cared for by a relative; • The Department has not provided to the parents such services as the court and the department have deemed necessary for the child's safe return home; • The Department has documented a compelling reason for determining that termination of parental rights would not be in the child's best interests; • Where a parent is in a dependency treatment court or in a long-term substance abuse or dual diagnosis treatment program and is in compliance with the program; • A parent files a declaration under penalty of perjury stating the parent’s financial inability to pay for the court-ordered services, and also declares that the Department was unwilling or unable to pay for the services necessary for the child’s safe return home. • The parent is incarcerated or parent’s prior incarceration is a significant factor in the child’s length of stay, the parent maintains a meaningful role in the child’s life, and the Dept. has not documented another reason why it is otherwise appropriate to file a termination petition.

18. ICWA - Notice In a termination proceeding where the court knows or has reason to know that an Indian child is involved, the Department must: • Notify the child’s tribe, and if it cannot be determined notify the BIA, by registered mail. • Notice must allow BIA 15 days after receipt to notify the child’s tribe.

19. ICWA – Legal standard • Court must also find beyond a reasonable doubt 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 finding must be supported by testimony of a qualified expert witnesses. Washington State ICWA lists who may be such a witness, but it cannot be the assigned social worker. • Department must also prove that it made active efforts to provide remedial services and prevent the break-up of the Indian family, and that these efforts were unsuccessful. Washington State ICWA defines “active efforts” as a showing that the Department actively worked with the parent to engage him or her in remedial services and rehabilitation programs.

20. Termination as to both parents • Department policy is not to terminate parental rights as to one parent only. • Why? • Termination of parental rights eliminates the child’s rights to inheritance, the child’s relationship with extended family, and entitlement to further child support. • It should only be pursued with the goal of achieving permanence through adoption.

21. Common issues at trial • Were all court-ordered services offered to the parent? • Were all reasonably available necessary services offered to the parent? • Given the parent’s compliance with some services, is there little likelihood that the parent will remedy the parental deficiencies in the near future? • What is the near future for this child? • How does continuation of the parent-child relationship diminish the child’s prospects for integration into a permanent home? • Why is termination of parental rights in this child’s best interests?

22. Activity Small group discussion (10 mins.): • What element/s of termination will be more difficult to prove in each child’s case, and why? • How could you address those issues before or during trial? • How would your case change, if at all, if you received notice that Zoe is an Indian child under ICWA? Report back to large group

23. Other considerations Appeals – Court of Appeals Appeals – Supreme Court Liability Sanctions Humanistic litigation Goal of dependency

24. Appeals – Court of Appeals • What is the Court of Appeals? • A court that hears appeals from decisions of the Superior Court. Its cases are decided “on the record.” If it publishes a decision, the decision becomes law. • What happens to our cases when a decision is pending at the Court of Appeals? • Consult with your assigned AAG. When a termination is on appeal, you may not move to adoption, depending on your local practice and compliance with state-wide policy. • RAP 18.3(k) requires the Department to provide notice of intent to deliver consent to adoption. • How long does it take to get a decision in a case before the Court of Appeals? • It depends on the issue on appeal. Expect it to take up to a year, and in some cases more.

25. Appeals – Supreme Court • What is the Supreme Court? • The Supreme Court is the final court of appeals in our state. It handles appeals from the Court of Appeals. Its cases are decided “on the record.” Its decisions become law. • When does the Supreme Court take our cases? • It is not required to take our cases. It takes them when an issue of statewide importance is involved. • It takes only 140 cases total per year. • How long does it take to get a decision in a case before the Supreme Court? • A long time. You can be looking at more than a year.

26. 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.

27. 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.

28. 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

29. 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.

30. Thank you! For your hard work For your patience For your professionalism For protecting children