Nebraska Juvenile Law Update 2008: Recent Case Law, Legislation, and Policy Reform Issues

1. Core Values. Common Ground. Equal Justice. Issues at the Intersection of Juvenile, Family, and Poverty LawNebraska Juvenile Law Update 2008: Recent Case Law, Legislation, and Policy Reform IssuesNebraska State Bar Association - 2008 Annual Meeting Nebraska Appleseed Center for Law in the Public Interest Sarah Helvey, J.D., M.S. LaShawn Young, J.D.

2. Roadmap • What is Nebraska Appleseed? • What is the Foster Care Reform Legal Resource Center? • Legislative Update • Systemic Reform Issues • Case Law Update • Discussion and Questions

3. What is Nebraska Appleseed? • Nebraska Appleseed was founded in 1996 • A statewide 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 • The Appleseed Network

4. Program Areas • Low-Income Self-Sufficiency • Immigrant Integration and Civic Participation • Child Welfare System Accountability • Health Care Access • 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. Projects: • Policy • Litigation • Legal Resource Center “If we don’t stand up for children, then we don’t stand up for much.”- Marian Wright Edelman, Founder of the Children’s Defense Fund

6. 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. “We live in a world in which we need to share responsibility. It’s easy to say, ‘it’s not my child, not my community, not my world, not my problem.’ Then there are those who see the need and respond. I consider those people my heroes.” - Fred Rogers

7. Foster Care Reform Legal Resource Center • 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 • Collaborative trainings • Resources including sample pleadings and briefs

8. Legislative Update

9. Unicameral Update • This update covers 2008 legislative session and carryover bills from the 2007 session • Only bills raising systemic issues in the child welfare system • Chart of final actions available

10. Unicameral Update 2008 Legislature – Recap 9 child welfare bills introduced in 2008 One 2008 bill passed: LB 782 - Allow disclosure of child abuse and neglect information (Sen. Howard) Plus, Juvenile Justice & GALStudy as an amendment to the budget bill And, several amendments to the Judiciary Cmte’s omnibus bill, including provisions for facilitated conferencing All others indefinitely postponed

11. Unicameral Update 2007 Carryover Bills 14 child welfare bills carried over from the 2007 session 12 of those indefinitely postponed Two carryover bills passed: LB 92 – Change provisions relating to foreign national minors (Sen. Cornett) LB 157 – Provide for leaving an infant with a firefighter or hospital staff worker (Sen. Stuthman)

12. Unicameral Update 2008 Child Welfare Interim Studies • LR 292 – Interim study to review services available to at-risk children age birth to five years (Sen. Adams). • LR 346 – Interim study to reexamine the effects of changing the age of majority from age nineteen to age eighteen (Sen. Rogert). • LR 348 – Interim study to examine the issue of language access in Nebraska’s health care and human services systems (Sen. Dubas). • LR 355 – Interim study to examine the feasibility of the Dept. of Health and Human Services contracting with other social services agencies for the provision of foster care services (Sen. Fulton). • LR 363 – Interim study to identify powers and duties of the Dept. of Health and Human Services, to prioritize programs and services, and to examine funding of programs and services ( Sen. Erdman).

13. Federal Child Welfare Legislation Fostering Connections to Success and Increasing Adoptions Act 2008 (P.L. 110-351) • Passed the Senate on 9/17/08 and the House on 9/22/08, signed by the President on 10/7/08 • Key provisions: • Adoption Incentives: • Extends and expands the Adoption Incentives Program • Delinks Adoption Subsidy eligibility from AFDC • Aging Out Resources: • Gives states option to draw down IV-E dollars for foster children, ages 18-20

14. Federal Child Welfare Legislation Kinship Care: Gives states the option to use IV-E funds for kinship guardianship payments Requires agency due diligence to identify relatives within 30 days of removal and notice on right to participate in child’s care/placement If placement goal is relative guardianship, case plans must show efforts to accomplish this Other Key Provisions: Makes Indian tribes Title IV-E eligible Requires reasonable efforts to place siblings together and provide for frequent visitation if not Requires all foster children to be enrolled in their school of origin where appropriate or, when a move is necessary, the agency must coordinate with school system to assure the child is transferred promptly with all records.

15. Systemic Reform Issues

16. Systemic Reform Issues • HHS In-Home and Out-of-Home Service Contracts • Reasonable Efforts

17. HHS In-Home & Out-of-Home Service Contracts New Safety Model • Nebraska Safety Intervention System (NSIS) - implemented over the past year In-Home • New contracts for in-home services, started in July 2008 • Provide the entire continuum of safety and in-home services to children and families identified by HHS within the five Service Areas

18. HHS In-Home & Out-of-Home Service Contracts Out-of-Home Goals: • Reduce gaps in continuity of services and placements inherent in current structure of over 100 providers • Require contracting agencies to utilize evidence-based or promising practices • Avoid “role conflict” where state is funding, providing, and evaluating services. Under the recommendations: • HHS: retains responsibility for “critical case decisions” • Contractors: manage day-to-day service coordination, responsible for all non-treatment services, delivery and coordination of services Timeline: • Community meetings held in Sept./Oct. 2008 • Contractor selection process in Oct.-Jan. 2008, with final contractor(s) selected on February 1, 2009 • New contracts begin on July 1, 2009

19. REASONABLE EFFORTSThe Duty to Reunify Families

20. THE ORIGINS • 1980 AACWA (Adoption Assistance and Child Welfare Act) • 1997 ASFA (Adoption and Safe Families Act) • 42 USCA sec. 671 • Safety of the child paramount

21. NEBRASKA • Codified at Neb. Rev. Stat. 43-283.01 • Court must make determination of reasonable efforts: • At removal from the home – 43-247 pursuant to 43-285 • When removal is continued pending adjudication 43-254 • At status and permanency planning hearings 43-1315 • Termination of parental rights 43-292(6) • In re Interest of DeWayne G., 263 Neb. 43 (2002).

22. REASONABLE EFFORTS ALWAYS ??????? • The law allows for exceptions to the reasonable efforts requirement. • 43-283.01(4) Court of competent jurisdiction (juvenile court) must make the determination that reasonable efforts are not necessary. It is the State’s burden to prove by clear and convincing evidence. In re Destiny C., 15 App. 179 (2006).

23. THE EXCEPTIONS TO MAKING REASONABLE EFFORTS • Aggravated circumstances includes but is not limited to: • Abandonment • Torture • Chronic abuse • Sexual abuse • See In re Interest of Jac’Quez N., 255 Neb. 782 (2003) • Crimes committed by Parent: • 1st or 2nd degree murder on another child of the parent • Voluntary manslaughter of another child of the parent • Aided or abetted in the attempt to commit murder or aided or abetted voluntary manslaughter of the juvenile or another child of the parent • Felony assault causing serious bodily injury of another child of the parent • Rights Involuntarily terminated to a sibling of the juvenile

24. ICWAIndian Child Welfare Act • The Indian Child Welfare Act requires that the State make active efforts to provide remedial services and rehabilitative programs designed and prevent the breakup of the Indian family. 25 U.S.C.A. sec. 1912 (d). • Neb. Rev. Stat. 43-1505 mirrors the federal law. • Active efforts requires more than reasonable efforts. • Active Efforts also requires a cultural component and need only be proven by clear and convincing evidence. In re Interest of Walter W., 274 Neb. 859 (2008). • A termination of parental rights not only requires active efforts but also that the continued custody by the parent would cause serious emotional or physical damage to the child. Neb. Rev. State. 43-1505(6).

25. Case Law Update

26. Case Law Update • Nebraska Court of Appeals and Supreme Court cases dating back to July 2007 • Selected cases raising systemic issues in the child welfare system • Full summaries available

27. In re Interest of Xavier H.S-06-841 Decided October 19, 2007 • The Sup. Ct. reversed a TPR where the presumption that reunification is in the CBI was not rebutted by a showing of unfitness. Mother adjudicated based on child’s special medical circumstances, which no longer existed. Also, mother had custody of two older children. • Sup. Ct. noted that the proper starting point for TPR is “always the fundamental constitutional rights of a parent.” • Sup. Ct. reiterated that “a court may not properly deprive a parent of custody…unless it is affirmatively shown that such parent is unfit…” • “The fact that a child has been placed outside the home for [15/22] does not demonstrate parental unfitness”…“’merely a guideline’ for what would be a reasonable time for parents to rehabilitate themselves to a minimum level of fitness.”

28. Amanda C. v. Case The Sup. Ct. affirmed the district court’s decision to grant summary judgment to Amanda, by and through her father, for a DHHS caseworker’s deprivation of Amanda’s substantive DP rights to a relationship with her father in violation of §1983. The district court awarded $150k in damages, $53k in attorneys fees, and $11k in costs. The Sup. Ct. held that the child had a reciprocal right to be raised by her biological parent that was violated when a caseworker repeatedly urged the father to relinquish without the knowledge of the father’s attorney or GAL. The Sup. Ct. found that the district court did not err in relying on collateral estoppel to find the caseworker violated Amanda’s substantive DP rights based on issues litigated in a similar case brought by Amanda’s father. The Sup. Ct. also concluded that there was sufficient evidence that the caseworker’s actions were a substantial factor in causing actual harm to Amanda. 275 Neb. 757 Decided May 23, 2008

29. In re Interest of Walter W. The Sup. Ct., in affirming a TPR, held that the active efforts requirement of ICWA was met in this case, but articulated that active efforts is a higher standard than reasonable efforts and must include some “culturally relevant component.” The Sup. Ct. also held that are differing burdens of proof within an ICWA case: Clear & convincing for “active efforts” and “best interest” Beyond reasonable doubt for the “serious emotional or physical damage” element 274 Neb. 859 Decided January 18, 2008

30. In re Interest of Lawrence H The COA held that a juvenile court’s refusal to rule on a motion to transfer to a tribal court in an ICWA case before proceeding with TPR was erroneous and an abuse of discretion. Court must have testimony/evidence on the record of good cause not to transfer 16 Neb. App. 246 Decided December 11, 2007

31. In re Interest of Kevin K. 274 Neb. 678 Decided December 21, 2007 • The Sup. Ct. reversed a COA decision which held that the juvenile court erred in its termination of jurisdiction over Kevin for habitual truancy after he turned 16 and was no longer a truant under§79-201(3)(d). • The Sup. Ct. concluded that “[t]here is no statutory requirement that in all cases, termination of jurisdiction must be shown to be in the best interest of the juvenile.”

32. In re Interest of JazzmineA-08-076 Decided July 1, 2008 – not designated for permanent publication • The COA reversed a decision of the juvenile court finding that DHHS was not relieved of its responsibilities despite appointing a guardian for Jazzmine. • Under §43-286(l)(a)(iii), a juvenile may be “placed” in a suitable home or institution and remain in the “care and custody”of DHHS. However, appointment of a guardian is materially different than mere “placement” in a foster home. • The COA considered the nature of a guardianship and reiterated that a guardian has “all the powers and responsibilities of a parent” and therefore it was “inconsistent with Nebraska law for the juvenile court to have appointed…[a] guardian, but to have required DHHS to retain its custodial responsibilities…”

33. In re Interest of A.W. et al. 16 Neb. App. 210Decided November 27, 2007 • The COA found that a dispositional order reducing visitation by about a half is a final, appealable order affecting a substantial right, but affirmed the decision of the juvenile court adopting the case plan. • The COA held that the order in this case which reduced visitation (from 1/mo. to 1/every other mo., previously father had 2-4 times/wk.) is a final, appealable order. • However, the COA held that juvenile court did not error in approving case plan – §43-385 sets forth a preference in favor of the proposal while providing the juvenile court with discretion. To disprove a case plan, the party challenging must prove the plan is not in the CBI by a preponderance, which the father in this case failed to show.

34. In re Interest of April E.A-08-036, A-08-038 Decided May 27, 2008 – not designated for permanent publication • The COA held that an ex parte detention order is not a final, appealable order and, therefore, the COA lacks jurisdiction to evaluate the evidentiary basis of that order. • The COA also held that the county court did not violate the mother’s due process rights based on the length of time between the children’s removal and the first hearing on temporary custody, which was a period of 18 days. • The COA called 18 days “on the outer edge of reasonableness” but concluded that it was not unreasonable.

35. In re Interest of Destiny A. et al., 274 Neb. 713 Decided December 21, 2007 • The Sup. Ct. affirmed a TPR, where testimony that an adoptive family had been identified was admitted contrary to §43-292.02(2) but was not reversible error, and where hearsay testimony re: the child’s reaction to visitation was admitted but sufficient protections existed to protect due process. • In determining whether to TPR, a juvenile court should not consider evidence that an adoptive family has been identified (to do so is error); however, in this case, the admission of such evidence was not reversible effort because an objection was made and testimony was not considered for CBI on de novo review. • Due process was sufficiently protected where the foster mother testified that the child did not want to attend visitation (hearsay) because mother’s counsel had an opportunity to cross examine and other similar evidence existed which the mother did not assign as error for appeal.

36. In re Interest of Brittany M. et al A-07-719 Decided April 1, 2008 – Not Designated for Permanent Publication • The COA affirmed a juvenile court order overruling the parents’ motion in limine seeking the exclusion of evidence regarding the children’s allegations of sexual abuse (which had been dismissed by the juvenile court at the adjudication hearing). • The COA cited In re Interest of V.B. and Z.B. in which the Sup. Ct discussed the applicability of res judicata to TPR cases: “A custodial order is conclusive to all matters prior to its promulgation. But the doctrine of res judicata cannot settle a question of a child’s welfare for all time to come; it cannot prevent a court at a subsequent time from determining what is best for the child at that time.” • The COA noted that “the issue being litigated at the TPR was…best interests, while the issue litigated at the adjudication…was jurisdictional in nature.” Therefore, the evidence was pertinent and relevant to CBI at the TPR.

37. In re Interest of Ajal B. and Akur B.A-06-1354 Decided July 24, 2007, not designated for permanent publication • The COA reversed (one of two counts of) an adjudication where a domestic altercation incident appeared to be isolated, there was no history of violence, and no serious injuries were sustained. • Court recognized that it is not necessary for children to suffer actual harm, juvenile court may properly take jurisdiction if evidence shows risk of harm. • However, in this case, no evidence of prior altercations & no evidence that following the altercation children lacked parental care because mother was hospitalized or father was incarcerated.

38. Foster Care Reform Legal Resource Center Take Action: • 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!

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