The Life of a Dependency

Legal authority – federal Legal authority - state Child abuse/neglect defined Confidentiality Collaboration Reasonable efforts

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.

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

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

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.

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.

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

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.

Activity

Small Group Discussion (5 mins.):

1) At the time of the filing of the dependency petition, what reasonable efforts to prevent removal had been made in this case?

2) 3) In your opinion, was this enough? Why/why not?

What might you have done differently?

Report back to large group

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

Court structure

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

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”

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

“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.

Service of the petition

1)   Personal service 15 court days prior to fact-finding only exception – out-of-state parent 2)  Via certified mail received 15 days prior to fact-finding 3)   Publication following due diligence 1 st date of publication must be 25 days prior to fact finding

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)

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

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

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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.

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?

Legal standard Timing SW obligations before hearing In the courtroom Discovery Court’s considerations

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

Timing

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

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

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

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.

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.

Activity

Small group discussion (10 mins.)

1) How would you explain imminent risk of harm to Serena if she were released to either parent’s care at shelter care?

2) How would you explain imminent risk of harm to Zoe if she were released to either parent’s care at shelter care?

3) How can you put your best foot forward in court so that you are more credible?

Report back to large group

Legal standard “Indian” child Timing Evidence rules Settlement Working with your AAG Testifying Dispositional hearing Placement Visitation Services

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.

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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.

Timing

 Hearing must be held within 75 days of petition being filed unless exceptional circumstances exist.

 Courts interpret “exceptional circumstances” differently.

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.

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

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.

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:

x Argue x x Get mad Assume anything x x x x x Answer a question with a question Equivocate Give vague answers Speculate Agree to inaccurate language

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

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

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

Visitation



Visitation with parents and siblings is a right.

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It is presumed that visitation is in the child’s best interest.

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Visits may not be conditioned on compliance with services or cooperation with DSHS.

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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.

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

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

Activity (cont.)

Large group discussion:

1) What hurt the credibility of the witnesses?

2) What helped it?

3) Whose testimony was more effective, and why?

Timing Issues before the court Visitation Permanent plans Return home Adoption Dependency guardianship Permanent legal custody

Timing

 1 st 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.

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?

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?

Permanent plans

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

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.

Adoption

 Prior to adoption all parents’ rights must be terminated or relinquished.

 A termination petition starts a separate but related action from the dependency.

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

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

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.

Activity

Small group discussion (15 mins.):



At the 2

nd

review hearing / 1

st

permanency planning hearing, what would you recommend to the court and how would you support your recommendations to the court regarding:

1) 2) 3) 4) 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

Activity (cont.)

Demonstration of SW testimony at a review hearing Lessons learned?

Legal standard Timelines Good cause exception ICWA – Notice ICWA – Legal standard Termination as to both parents Common issues at trial

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.

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.

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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.

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.

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.

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.

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?

Activity

Small group discussion (10 mins.):

1) What element/s of termination will be more difficult to prove in each child’s case, and why? 2) 3) 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

Appeals – Court of Appeals Appeals – Supreme Court Liability Sanctions Humanistic litigation Goal of dependency

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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.

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.

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.

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.

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

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.

For your hard work For your patience For your professionalism For protecting children