07/12/2007

In this issue:

• Policy Spotlight: Relative Placement
• Nebraska Court Opinions: In re Interest of Mitchell H.
• Federal Legislative Actions
• Upcoming Events and Conferences

POLICY SPOTLIGHT

The Relative Placement Preference: Kinship Care in Nebraska and the Nation

Both federal law and Nebraska state law require that the Nebraska Department of Health and Human Services (NDHHS) give preference to relatives when making placement determinations for children who have been removed from their homes due to abuse and neglect. The relative placement preference is first a federal requirement. In order to receive federal funding for child welfare services, federal law 42 U.S.C. §671(a)(19) (2007) mandates that state agencies “consider giving preference to an adult relative over a non-related caregiver when determining placement for a child, provided that the relative caregiver meets all relevant State child protection standards.” The specific order of placement in Nebraska is set forth in 390 Neb. Admin. Code § 7-004.01A (2007), which states that non-custodial parents will be considered first, followed by an approved relative, then an approved home known to the child, and thereafter a licensed foster home, an approved home not known to the child, an agency-based foster care, and a group home or child-caring agency. Under the Indian Child Welfare Act (ICWA), 25 U.S.C. § 1915(b) (2007), and the Nebraska statutory counterpart (NICWA), Neb. Rev. Stat. §43-1508(2) (2006), members of the child’s extended family must be given preference “in the absence of good cause to the contrary" in cases involving Native American children. In addition, both ICWA and NICWA set forth distinct placement preferences in such cases.

While it appears that NDHHS is utilizing relative placements more and more, Nebraska is placing children with relatives in a relatively small percentage of cases. As of January 2007, Nebraska had a total of 4,754 children in out-of-home placement. Of these children, 994 (21%) were placed with relatives. In addition, there are some concerns that relative placements are being pursued at later points in the process, sometimes after termination of parental rights has occurred. This often results in children being moved from long-term, stable placements in favor of placements with relatives, in some cases with relatives who reside in other states and with whom the children are not acquainted.

The Nebraska Appleseed Foster Care Reform Legal Resource Center is developing a Policy Brief on the issue of relative placements. The Policy Brief focuses on the legal issues surrounding relative placement and how courts in Nebraska and across the country grapple with these issues. The Policy Brief also discusses various policy responses that have been implemented in other states to address issues related to relative placements of children. Overall, we hope the Policy Brief will encourage efforts to identify relative placements, when safe and appropriate, early in the process.

Please contact Sarah Helvey for a copy of the Appleseed Policy Brief entitled Relative Placement in Nebraska

NEBRASKA COURT OPINIONS

In re Interest of Mitchell H., A-06-1197
http://court.nol.org/opinions/2007/july/jul3/a06-1197.pdf (Decided July 3, 2007, not designated for permanent publication).

On April 20, 2005, the State filed four petitions regarding four children (Mitchell, 9; Trent, 7; Emily, 6; and Rachel, 3) alleging that the children came within the meaning of Neb. Rev. Stat. § 43-247(3)(a) due to the fault of their parents, James and Donna. In a February 2006 dispositional hearing to determine whether James should remain in the home, the court heard evidence of James’ anger management issues, inappropriate parenting skills, and history of verbal abuse in support of the county attorney and guardian ad litem’s (GAL) opposition to DHHS’ recommendation of keeping James in the family home. In April 2006, the court “ordered, in part, that James remove himself from the family home until DHHS develops an alternative plan” and also ordered that DHHS develop a visitation plan for Trent and his biological mother (James’ ex-wife), Holly. The court subsequently rejected DHHS’ alternate plan, which permitted James to return to the family home. At the June 12, 2006 dispositional hearing, James’ DHHS caseworker gave mixed testimony regarding James’ proposed return to the family home (the caseworker did not believe that James would pose a physical threat to the children, but may pose a mental health threat). He further testified that returning James to the family home would assist with scheduling (because James does not have a driver’s license) and would provide James with the “opportunity to ‘implement stuff he has been learning through counseling.’” James’ individual and family counselor and his family support supervisor both testified that James’ separate living arrangement obstructed progress in family counseling. The court found on July 12, 2006 that “the case plan did not have as its paramount concern the health and safety of the children, that James’ continuing manipulation placed his agenda ahead of the health and safety of the children, and that the State’s measures to protect the children were wholly inadequate.” The court ordered that James remain outside the home and that “James continue therapy for manipulation and show ‘significant and measured improvement’ for at least 6 months before [the court] would allow nonsupervised visitation.”

James and Donna appealed, asserting that the court erred in keeping James out of the family home and in depriving him of notice before modifying the visitation order. The Court of Appeals affirmed the juvenile court’s decision on both questions. On the first question, the Court of Appeals agreed with the county attorney and the GAL that it was in the best interests of the children to keep James out of the family home until he developed “significant and measured improvement.” Specifically, the Court of Appeals pointed to James’ continued use of profanity and other inappropriate comments, purposeful obstruction of unannounced visits by the GAL, and habitual lying as evidence to support the conclusion that James should remain outside the family home. In response to James’ argument on appeal that testimony from his caseworkers and counselors supported a finding that James should be returned to the family home, the Court of Appeals responded by characterizing the “positive” testimony as concerning scheduling difficulties and not the best interests of the children. The Court of Appeals also rejected the claim that “allowing James to return home would provide him with an opportunity to practice skills learned in therapy,” finding that James has sufficient opportunity to practice what he has learned during visitation. Arguing that “[d]ue process safeguards at a disposition or detention hearing are less than those required at a hearing regarding the termination of parental rights,” the Court of Appeals rejected James’ argument that his due process rights were violated when the court considered the unadjudicated factor of manipulation and because “none of the adjudicated factors had ever reoccurred.” The Court of Appeals similarly affirmed the juvenile court’s decision with respect to notice of the modification of Holly’s visitation with Trent and rejected the argument that “the trial court had no authority to modify the visitation because visitation was not raised by the parties.” Relying on In re Interest of Veronica H., 272 Neb. 370, 721 N.W.2d 651 (2006), the Court of Appeals positively compared the facts in Veronica H. (the court’s authority to remove a caseworker) with the facts in the present case (the court’s authority to modify a visitation schedule) in determining that § 43-285(2) (which provides that a juvenile court has authority to disapprove or modify the plan, order that an alternative plan be developed, or implement another plan that is in the juvenile’s best interests) “provides implicit authority for the court to raise the issue of modification of visitation on its own motion.” The court also found that because James had more than one month’s notice that the court planned to address his ex-wife’s visitation schedule with Trent, he was afforded appropriate notice.

FEDERAL LEGISLATIVE ACTIONS

Federal Legislation to Watch

Several major pieces of legislation affecting children are up for reauthorization this year, including: SCHIP (State Children’s Health Insurance Program), the Farm Bill (which includes the Food Stamp Program in its Nutrition Title), Head Start, and No Child Left Behind.

For more information on these and other bills at the federal level, search http://thomas.loc.gov/.

For more information on Appleseed’s Federal Budget work, please visit http://www.neappleseed.org/budget.

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

Upcoming Events and Conferences

Nebraska Appleseed “Out State Trip” – As part of our annual trek to meet with community partners across the state, we will be visiting the following locations the week of August 7-10th: Lexington, North Platte, Scottsbluff, Chadron, Valentine, O’Neill, and Norfolk (yep, that’s all in four days!). Please contact Sarah Helvey if you are a practitioner on our route and are available to meet when we are in town or can suggest contacts through the local bar association or other agencies we might contact.

NSBA Family Law Section Seminar 2007 – July 13, 2007 in Omaha. Topics include: “Paternity Cases When the Child is Past the Age of Four Years,” “Nebraska’s New Parenting Act,” “New Child Support Guidelines,” “Case Law Update,” and “Legislation Update.” To register - http://www.nebar.com/pdfs/education/2007/sem07132007.pdf.

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

To make an online donation and help us make a difference, please visit: NeAppleseed.org/contribute

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