Transcript Social Services Attorneys’ Conference March 10

Social Services Attorneys’ Conference
March 9-10, 2006
Legislative Update:
Juvenile Law
Janet Mason
Institute of Government
SL 2005-55 (H 277)
Pre-Petition Role of DSS:
Multiple Response
• “Assessment” replaces “investigation.”
• After a report, DSS conducts
–an investigative assessment or
–a family assessment.
Pre-Petition
• Investigative Assessment
–Formal information-gathering process
–In response to report of abuse or
“serious neglect”
• Family Assessment
–Focuses on family needs and
strengths
–In response to report of dependency
or neglect other than serious neglect
Serious Neglect
Social Services Commission proposed rule:
“Serious neglect means conduct, behavior,
or inaction that evidences a disregard of
consequences of such magnitude as to
constitute an unequivocal danger to a child’s
health, welfare or safety.”
“Responsible Individuals List”
• DHHS must establish “Responsible
Individuals List”
• If local DSS finds abuse or serious neglect,
the Director
– determines who is RI
– sends name of RI to DHHS
– gives the RI “personal written notice”
Access to Information on RI List
DHHS may release information
from the list to:
– child-caring institutions
– child-placing agencies
– group homes
– providers of foster care, child care,
or adoption services
Removal of Name from List
A person may seek review and removal
of name from list by:
• DSS Director
• (District Attorney)
• District Court
• Court of Appeals
Review stops if DSS files a petition.
Petition to District Court for
Removal of Name from List
• Hearing closed at party’s request
• No right to appointed counsel
• DSS has burden of proof, by
preponderance of evidence
• Rules of evidence (sort of) apply
• Hearing stayed if DSS files juvenile petition
• Order must be entered within 30 days
Hearing on Petition to Remove Name
1. DSS director found that substantial evidence
supported determination of
– abuse or serious neglect and
– identity of responsible individual
2. Substantial Evidence: “Relevant evidence a
reasonable mind would accept as adequate
to support a conclusion”
3. Issue for Court = correctness of DSS
director’s determination
Person may not seek
removal of name if s/he is:
1. convicted in relation to same incident
2. named respondent in juvenile case re.
same incident
3. fails to seek timely review or file timely
petition
4. fails to keep DSS informed of current
address
Also, SL 2005-55 (H 277):
• Interference/obstruction petition must state
reason for initiating assessment
• Assessment involving day care need not
include visit to child’s home
• Act became effective 10/1/05
SL 2005-398 (H 1150)
1.
2.
3.
4.
5.
Counsel for Parents
Guardian ad Litem for Parent
Time Limits
Change in Child’s Placement
Appeals
Applies to petitions or actions
filed on or after 10/1/05.
Appointed Counsel for Parent
• In every abuse, neglect, dependency
case, summons or notice must show
appointment of “provisional counsel”
• At first hearing, court affirms appointment
unless parent:
1. Does not appear at the hearing,
2. Is not indigent,
3. Has retained counsel, or
4. Waives the right to counsel.
Guardian ad Litem for Parent
[Petitions & Actions Filed Before 10/1/05]
• Allegation of dependency caused by
substance abuse, mental illness, etc.,
always
• Requirement that court appoint
guardian ad litem
Guardian ad Litem for Parent
[Petitions & Actions Filed Before 10/1/05]
• Without allegation of dependency,
GAL may or may not be required.
– Is required if case is clearly focused
on parent’s incapacity
– Not required just because some
evidence relates to substance
abuse or mental health issue
[Petitions & Actions Filed Before 10/1/05]
OR
Allegations or evidence may trigger
obligation on court to conduct hearing
on the need for a guardian ad litem
Petitions & Actions Filed on or after 10/1/05
Court may appoint GAL for a parent, per
Rule 17, if court finds reasonable basis to
believe the parent:
1. is incompetent or has diminished capacity
and
2. cannot adequately act in his or her own
interest.
GAL for Parent–after 10/1/05
1. Allegations not determinative
2. Court may appoint GAL on own motion
or motion of party
3. Parent’s attorney may not also be GAL
4. GAL has privilege & confidentiality same
as attorney
5. Role of the GAL is still unclear
1. Is the GAL a “guardian of due
process”? (In re Shepherd)
2. Does GAL step into the shoes of
the respondent and control the
litigation? (In re J.A.A.)
Time Limits
New Requirement
In abuse, neglect, dependency case
disposition hearing must be
–Immediately after adjudication
–Completed with 30 days
If an order that is required to be
entered within 30 days is not:
1. Clerk must schedule hearing for first
juvenile session to
• determine & explain reason for delay
• obtain clarification of contents
2. Order must be entered within
10 days after that hearing
Change in Child’s Placement
DSS must notify child’s GAL
1. when DSS intends to change
the child’s placement or
2. if emergency prevents that,
• within 72 hours after changing
placement or
• sooner if local rules require
Appeals
Actions Filed on or after 10/1/05
• Lawyer for appealing party must sign
notice of appeal
• Attorney advocate must sign notice of
appeal when juvenile appeals
When May Attorney Give
Notice of Appeal?
• Time for notice of appeal = 30 days
• Lawyer for appealing party may give
notice of appeal only if directly
instructed by client to do so after
conclusion of proceeding
Which Orders May be Appealed?
An order that:
1. finds absence of jurisdiction
2. determines case & precludes later appeal
3. is initial disposition (appeal may include
adjudication)
4. changes custody (other than nonsecure)
5. ceases reunification efforts (*note timing)
6. grants or denies petition or motion to
terminate parental rights
Appeal of Order Ceasing
Reunification Efforts
• Guardian or custodian may appeal
“immediately”
• Party may give notice in court or in writing
within 10 days of hearing, to preserve issue
for appeal
• Parent may appeal
– when appealing termination order, or
– “within 180 days of the order” if no
termination motion or petition is filed
Jurisdiction During Appeal
• In RTW Supreme Court affirmed Stratton,
rejected Hopkins
• Court interpreted statute to say trial court
has jurisdiction to terminate parental rights
during appeal of prior order
• Holding applies only to actions and
proceedings filed before 10/1/05
In Actions Filed on/after 10/1/05,
During an Appeal:
1. Order on appeal may be
enforced, unless stayed by
trial or appellate court
2. Unless appellate court orders
otherwise, trial court may exercise
jurisdiction & conduct hearings,
except under Article 11 (TPR)
For Cases Appealed on or after 5/1/06
• Both trial counsel and appellant must sign
notice of appeal
• Appellant “must cooperate with counsel
throughout the appeal”
• Extensions of time to prepare transcript
only in extraordinary circumstances
• Accelerated preparation of record
• Trial counsel must assist in
preparing record
Termination of Parental Rights
• At disposition, court must determine whether
termination is in child’s best interest.
– Child’s age
– Likelihood of adoption
– Whether tpr will help achieve plan
– Bond between parent and child
– Quality of child’s relationship with
proposed adoptive parent, guardian, or
custodian
– Other relevant factors
SL 2005-320 (H 801)
Addresses:
1. Relationship of Chapters 7B and 50
2. When and how a juvenile case ends
Applies to:
All juvenile proceedings and civil
actions pending or filed on or after
10/1/05
Competing Custody Orders
If both juvenile (Ch. 7B) and civil (Ch.
50 or 50B) custody orders exist,
1. The juvenile order controls, and
2. The civil order is stayed.
When Both 7B and 50 Orders Exist:
Court in the juvenile case may
–Consolidate the cases
–Dissolve the stay
–Stay the juvenile proceeding
–Transfer either case to the district of
the other case, after consulting the
court in that district
Terminating Jurisdiction in
Juvenile Cases
1. When does a juvenile case end?
2. What is status of child and parties
when case ends? [Dexter, 2002]
3. Can the court turn a juvenile order
into a civil custody order?
YES, court may modify or create a
Ch. 50 custody order and end the
juvenile case if
1. Permanent plan = custody with a
parent, relative, or other person; and
2. Court makes Ch. 50 findings; and
3. State intervention through juvenile
court is no longer required.
SL 2005-146 (H 97)
New ground for terminating parental rights:
• Parent has committed murder or voluntary
manslaughter of child’s other parent
– Petitioner may prove conviction or
elements of offense
– Court must consider whether crime
involved self-defense, defense of others, or
other justification
SL 2005-254 (S 594)
When counsel appointed for a parent
on or after 10/1/05, the Court:
• may require parent to pay fees if child is
adjudicated abused, neglected, or
dependent, or parent’s rights are terminated.
• must consider parent’s ability to pay.
• must file judgment immediately if parent fails
to pay court-ordered fees.