Foster Care Reform Update

02/05/2007

WELCOME

Welcome to the Foster Care Reform Legal Resource Center listserv!

Thank you for joining us in this exciting effort to create a movement among Nebraska child welfare attorneys to influence legal precedent in the juvenile courts in a positive way and work together for meaningful reform of the system.

This is our inaugural “Foster Care Reform Update.” You can expect to see the Updates in your inbox on a regular basis. As you will see below, the Update highlights child welfare case law, policy and legislative developments, and foster care reform issues. The updates mainly focus on Nebraska juvenile court practice, but will from time to time feature successful reform or relevant case law developments in other states.

We also encourage list members to use this list to communicate with one another about issues and challenges that arise in your juvenile court practices as well as successful legal strategies. To send an email to the entire list, send to childwelfare@neappleseed.org. We also encourage you to invite interested colleagues to join the list. To protect the confidentiality of discussions on the list, however, the list is limited to GALs and attorneys representing biological and foster parents only.

In the meantime, we invite you to contact us if the Foster Care Reform Legal Resource Center can be of any assistance to you or when a case or issue implicating reform arises in your practice.

We look forward to hearing from you!

Sarah Helvey
Staff Attorney
Foster Care Reform Legal Resource Center

NEBRASKA COURT OPINIONS

Case Management
In the Interest of Deztiny C., 15 Neb. App. 179 (2006).http://court.nol.org/opinions/2006/november/nov14/a06-242.htm (Decided Nov. 15, 2006) The Nebraska Court of Appeals upheld a juvenile court decision refusing to terminate the parental rights of a biological father. In this case, the biological father expressed his intention to intervene but was not contacted by the DHHS when the case was transferred to a new caseworker. The Court found that, because the new worker did not contact or return phone calls to the father in the relevant six-month period, the father’s failure to connect with his child, a state ward, was due to just cause and not intentional abandonment. Thus, because the DHHS did not provide the father with customary information on how to intervene, the father was acting with a lack of knowledge and his failure to intervene could not constitute abandonment.

In the Interest of Veronica H., 272 Neb. 370 (2006). (Decided Sept. 29, 2006) The Nebraska Supreme Court held that the provision, “by and with the assent of the court,” in Neb. Rev. Stat. §43-285(1) implicitly means that the juvenile court has the power to dissent from a decision made by DHHS. The juvenile court, therefore, can require the DHHS to assign a case manager who is competent in the type of case being handled. In this case, the juvenile court ordered the DHHS to assign a case manager who was competent and experienced in incest cases. The Supreme Court upheld the ruling.

Permanency
In re the Interest of Stephanie G., A-06-194 (2006). (Decided Aug. 29, 2006, not designated for publication) The Nebraska Court of Appeals affirmed the termination of a mother’s parental rights. The Court stated that merely showing that a child has been in out of home placement for 15 of the last 22 months is sufficient to terminate parental rights as long as the termination is also in the best interest of the child. No additional proof is needed.

Reasonable Efforts
In the Interest of Ethan M., 15 Neb. App. 148 (2006). http://court.nol.org/opinions/2006/october/oct31/a06-179.htm (Decided Oct. 31, 2006) The Court of Appeals found that only legal family members, at the time the petition is filed, can be considered when the court is determining whether reasonable efforts are required to preserve the family. Under Neb. Rev. Stat. § 43.283.01(4), reasonable efforts are not required in certain circumstances in which the parent has subjected the juvenile or another minor child of the parent to certain aggravated circumstances. In this case, a man and woman were living together but were unmarried at the time the petition was filed with juvenile court. They were married prior to the disposition of the children. The man had one biological child and the woman had two biological children. The woman admitted to causing injuries to one of her two biological children. For determining whether this aggravating circumstance eliminated the need for reasonable efforts to reunify the family, only each child’s biological sibling/s and biological parent were considered. Therefore, the fact that the woman had abused her child only eliminated the reasonable efforts requirement for her children. It did not eliminate it for the man’s child, because the man’s child was not a legal family member of the woman’s at the time the petition was filed – even though the man’s child was the woman’s step-child at the time of disposition.

ICWA
In re Adoption of Kenten H., 272 Neb. 846 (2007). http://www.court.state.ne.us/opinions/2007/january/jan5/s06-204.pdf (Decided Jan. 5, 2007). The Nebraska Supreme Court relied on Nebraska precedent and Oregon and Colorado cases to determine that the provisions of ICWA and NICWA apply only prospectively from the date that the Indian child status is established on the record. The Indian child status is established on the record at the time a tribe enters an appearance in the case. Because ICWA and NICWA apply only prospectively, no action taken before that date may be invalidated due to non-compliance with ICWA or NICWA. In this case, the adoption was not invalidated based on non-compliance with ICWA or NICWA, but the case was nevertheless remanded to the juvenile court to hear the mother’s petition on other grounds. The Supreme Court also refused to determine whether the “Existing Indian Family Exception” applies in Nebraska.

In re Interest of Walter W., 14 Neb. App. 891 (2006). (Decided July 11, 2006) The Nebraska Court of Appeals used cases from various other jurisdictions on this issue of first impression. The Court determined that parents have standing to raise the issue of the state’s failure to comply with the notice requirements of ICWA and NICWA. The Court reasoned that because in many, if not most, cases, tribes depend on parents to notify the state of known or potential Indian ancestry, and because Indian tribes cannot intervene in cases where they receive no notification, logic dictates that parents may often be the best situated to raise claims of inadequate notice to tribes. In this case, the tribe’s representative indicated to the Foster Care Review Board that the tribe would not contest termination of parental rights, but did not waive notice of future proceedings. Because the tribe was not provided with notice of the termination proceeding, the Court held that the termination of the mother’s parental rights must be vacated and the case remanded.

NEBRASKA LEGISLATIVE ACTIONS

LB 6 – Provide Nebraska Safe Haven Act (placement of a newborn infant with a designated facility shall not constitute criminal abuse, neglect, or abandonment or automatic TPR). Introduced by Sen. Pahls.

LB 29 – Provide for court orders to direct financially able parents to pay for costs of care for wards of the state. Introduced by Sen. Friend.

LB 38 – Change the number of separate juvenile court judges. Introduced by Sen. Hudkins.

LB 52 – Create a task force to examine the prescription and administration of certain drugs to children who are wards of the state. Introduced by Sen. Howard.

LB 53 – Prohibit smoking in certain foster homes. Introduced by Sen. Howard.

LB 54 – Provide qualifications for certain child protection and safety workers. Introduced by Sen. Howard.

LB 55 – Change provisions governing funding of home visitation, child, and parenting programs. Introduced by Sen. Howard.

LB 68 – Create the Office of Guardian ad Litem Services. Introduced by Sen. Hudkins.

LB 71 – Appropriate funds for a child advocacy center. Introduced by Sen. Fischer.

LB 104 – Change age of majority from nineteen to eighteen. Introduced by Sen. Erdman.

LB 112 – Provide for the judicial emancipation of minors. Introduced by Sen. Erdman.

LB 157 – Provide for leaving an infant with a firefighter or hospital staff member. Introduced by Sen. Stuthman.

LB 296 – Reorganize the Health and Human Services System. Introduced by Sen. Johnson.

LB 410 – Change child welfare caseload provisions. Introduced by Sen. Howard.

LB 411 – Require standards for training for certain new health and human services employees. Introduced by Sen. Howard.

LB 457 – Change provisions governing court review of foster care placement. Introduced by Sen. Hansen.

LB 461 – Provide rights for foster parents. Introduced by Sen. Dubas.

LB 535 – Create the juvenile legal services division of the Commission on Public Advocacy and eliminate a council. Introduced by Sen. Schimek.

LB 556 – Change Juvenile Code provisions relating to counsel and guardian ad litem. Introduced by Sen. Ashford.

Note: This is not an exhaustive list of legislation or cases. The bills and cases in this update are selected by Appleseed as those raising systemic issues in the child welfare system.

UPCOMING EVENTS & CONFERENCES
National Institute for Trial Advocacy (NITA) “Training the Lawyer to Represent the Whole Child,” March 18-22, 2007, Minneapolis, MN. Information available at http://www.nita.org/page.asp?id=7&catid=24
ABA Center on Children & the Law – 12th National Conference on Children & the Law in partnership with the Harvard Law School Child Advocacy Program, April 13-15, 2007, Cambridge, MA. Information available at http://www.abanet.child

For more information about the Child Welfare System Accountability Project, please visit: NeAppleseed.org/children
For more information about Nebraska Appleseed, please visit: NeAppleseed.org
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