Foster Care Reform Update

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IN THIS ISSUE

  • Policy Spotlight: The Family First Act
  • Court Opinions: In re Interest of Jackson E., In re Interest of My’Kyng K., In re Interest of Alec S.
  • Legislative Actions: 2016 Child Welfare Legislative Bills
  • Announcements: Appleseed Blog

POLICY SPOTLIGHT

The Family First Act

The Family First Act is proposed federal legislation that may soon be introduced, by Senate Finance Committee Chairman Orrin Hatch (R-UT) and ranking member Ron Wyden (D-OR). The Family First Act (FFA) would expand the financing options to state child welfare systems by allowing federal dollars to be used on prevention services focusing on children remaining in their homes as well as encouraging least restrictive placements that are more family-like.

Specifically, the proposed FFA would allow states to shift their traditional use of Title IV-E funding, from costs associated with placing children in out-of-home settings to evidence-based prevention, intervention and post-permanency services and supports. Children and youth who are identified as at-risk of entering or re-entering foster care but who can safely remain at home, pregnant and parenting youth in foster care, and parents or kinship placements would be eligible for these preventative services for a maximum of twelve months. Under the proposal, children, youth, and families would no longer be held to the old AFDC requirements of Title IV-E.  Furthermore, after a youth is in care for two weeks, states would only be able to draw down federal financial participation (FFP) for placements in a family foster home, qualified residential treatment programs, a facility for pregnant or parenting youth, or an independent living arrangement under the FFA.

Nebraska Appleseed will be tracking the FFA upon its introduction and throughout the federal legislative process. For more information on this legislation read this article from the State Policy Advocacy and Reform Center.

COURT OPINIONS

In re Interest of Jackson E., No. S-15-534.
Filed March 18, 2016

The Nebraska Supreme Court dismissed an appeal that sought to reverse a juvenile court order overruling the grandparents’ motion seeking placement of the child, because the child’s grandparents did not have standing to appeal. In this case, the child was removed from his parents’ custody after the State filed a petition alleging the child was within Neb. Rev. Stat. § 43-247(3)(a) and placed in foster care with his maternal grandmother and her husband (grandparents) with the permanency objective of reunification. After two and a half years, the Department of Health and Human Services (DHHS) removed the child and placed him with another set of foster parents. Subsequently, the grandparents filed a motion seeking the return of the child’s placement and a motion to intervene. The juvenile court held a hearing to review both motions and DHHS’ permanency objective. No party objected to the motion to intervene and the court sustained the motion. The court next considered DHHS’ proposed permanency objective and modified the permanency plan from reunification to adoption. Lastly, the juvenile court concluded that the State had proven that the new placement was in the child’s best interests and denied the grandparents’ motion. The grandparents subsequently filed a motion for new trial or to alter or amend the order denying their motion for placement which was overruled. The grandparents appealed and alleged that the juvenile court erred in finding that the State had met its burden of proof that its placement plan was in the best interests of the child, in failing to give adequate preference to relative placement, and in failing to sustain their motion seeking placement of the child. The Nebraska Supreme Court first noted that two jurisdictional issues were presented by this appeal: (1) whether the grandparents have standing to appeal, and (2) whether the notice of appeal was timely filed. However, the Supreme Court determined that the grandparents lacked standing and thus did not reach the second jurisdictional issue. The Nebraska Supreme Court concluded that, as foster parents, the grandparents did not have standing to appeal the change in the child’s placement, and clarified that neither their status as intervenors nor grandparents granted them standing to appeal this determination. The Court reasoned that § 43-2,106.01(c) only grants the right to appeal from a final order or judgment entered by a juvenile court to the “juvenile’s parent, custodian, or guardian.” The Supreme Court noted that it had previously recognized that., that “custodian” meant “legal custodian, that is, the person or entity given custody of a child by appropriate court order,” and that mere placement of a child with a person does not constitute that person as custodian. The Supreme Court also noted that the grandparents did not fall within the more recently recognized expanded definition of “custodian” because they were never awarded legal custody of the child and thus lacked standing to appeal the juvenile court’s order. Read the full opinion.

 

In re Interest of My’Kyng K., No. A-15-805 (not designated for permanent publication)
Filed March 15, 2016

In a memorandum opinion, the Nebraska Court of Appeals affirmed an order of the juvenile court which terminated the parental rights of a father. In this case, the child was removed from the mother’s custody in June 2013 and the mother’s parental rights were either relinquished or terminated in January 2015. The father was not contacted until February 2015 and his paternity was established via genetic testing in March 2015. In April 2015, the State filed a supplemental petition, alleging that the child was within the meaning of § 43-247(3)(a) as to the father, and also filed a motion seeking termination of the father’s parental rights pursuant to §§ 43-292(2) and (7). In May 2015, the father appeared with counsel at his first court hearing and denied the allegations in the supplemental petition and the motion for termination of parental rights. The father was subsequently awarded reasonable rights of supervised visitation and was ordered to to participate in “Permanency Mediation,” complete a “Batterer’s Intervention” course, undergo an “Initial Diagnostic Interview,” and a complete a chemical dependency evaluation. However, the father was not present for two subsequent hearings in July and his counsel was served a copy of the juvenile court’s order. At the second hearing in July on the State’s motion for termination of the father’s parental rights, the father’s counsel requested a continuance but the court overruled the motion to continue. The only witness to testify at the hearing was the child’s case manager who testified that she was not able to contact the father for the first two years of the child’s foster care placement. The case manager also testified that she referred the father to child support in order to establish paternity, but the father declined the referral because “he did not want to pay a monthly payment.”  Lastly, the case manager testified that the father was granted visitation rights after his initial appearance, but did not exercise those rights for six weeks and he did not follow through on his referral for the permanency mediation. As a result, the juvenile court found the child to be within the meaning of §§ 43-247(3)(a) and 43-292(2) and (7) and held that termination of the father’s rights was in the child’s best interests. The father appealed and alleged that the juvenile court erred in refusing to grant his motion for a continuance, in finding grounds to terminate his parental rights under § 43-292(2) and (7), and in finding that it was in the child’s best interest to terminate his parental rights. The Court of Appeals concluded that the juvenile court did not abuse its discretion in denying the continuance because the father was advised of the court date, was represented by counsel who had the opportunity to confront and cross-examine witnesses, and as such was afforded procedural due process. The Court of Appeals then concluded that the State had presented sufficient evidence to terminate the father’s parental rights pursuant to § 43-292(2) because the father had continuously failed to give the child necessary care and protection, he had demonstrated an unwillingness to financially support the child by declining the case manager’s referral to child support to establish paternity, he displayed a lack of interest in having a relationship with the child in failing to exercise visitation rights immediately, and the father failed to participate in any of the services ordered by the juvenile court. The Court of Appeals also noted that the father’s absence at the termination hearing showed his indifference towards the child. Finally, the Court of Appeals determined that termination of the father’s parental rights was in the child’s best interest because he had made no efforts to connect with the child and had made “no real effort to keep his parental rights intact.” Read the full opinion.

 

In re Interest of Alec S., No. A-15-658.
Filed March 15, 2016

The Nebraska Court of Appeals reversed and remanded an order of the juvenile court which terminated the parental rights of a mother. The Court of Appeals concluded that the State failed to adduce clear and convincing evidence that termination of the mother’s parental rights was in the child’s best interests and remanded the case for further proceedings. In this case, the child was removed from the mother’s custody in September 2014 and adjudicated to be a child within the meaning of § 43-247(3)(a) in January 2014 after the State filed a petition alleging that the mother had been diagnosed with posttraumatic stress disorder, depression, and anxiety, had failed to seek inpatient treatment as recommended by her medical providers, that she was unable to provide proper parental care, support, or supervision for the child, that she used alcohol and/or controlled substances, and that the child was at risk for harm. In March 2014, the mother was ordered to participate in a chemical dependency therapy program, submit to random drug and alcohol testing, participate in programs at Community Alliance, attend family therapy with the child, participate in psychiatric care, and attend supervised visitation. In the September 2014 and January 2015 review hearings, the juvenile court continued the previous orders with the same requirements, except the mother was no longer required to participate in a chemical dependency therapy program. In February 2015, the State filed a motion to terminate the mother’s parental rights under § 43-292(2), (6), and (7).  The termination hearing was held in June 2015 during which four witnesses testified, including a clinical psychologist who testified to the mother’s mental health diagnoses, a mental health therapist that testified to the child’s diagnosis of adjustment disorder and to the lack of success during family therapy sessions with the mother. However, a separate mental health therapist testified to the positive progress made during family therapy sessions and to a strong bond between the mother and child. This therapist also stated it would be in the child’s best interests to maintain a relationship with the mother. Finally, the child’s caseworker testified to the mother’s inconsistent participation in court-ordered services such as random drug screening, therapy, and visitation. The juvenile court found that the mother had failed to participate in services to the degree necessary to move toward reunification, that the State had presented sufficient evidence to warrant termination of the mother’s parental rights, and that it was in the best interests of the child to terminate the mother’s parental rights. The mother appealed and alleged that the juvenile court erred in finding that the State proved the requisite statutory grounds for termination by clear and convincing evidence and in finding that termination of her parental rights was is in the child’s best interests. The Court of Appeals noted that the mother conceded the child was in out-of-home placement for 15 or more of the last 22 months and because no finding of parental fault is necessary under § 43-292(7), the Court of Appeals concluded that the statutory grounds to terminate the mother’s parental rights had been met and did not further address the other alleged statutory grounds.  The Court of Appeals then analyzed whether termination of the mother’s rights was in the child’s best interests. The Court of Appeals concluded that the State failed to show that termination of the mother’s rights was in the best interests of the child because there was no evidence presented as to how the mother’s mental health diagnoses and treatment needs affected her ability to safely parent the child, there was no evidence establishing that the mother’s drug and alcohol use impacted her ability to care for the child, and the record lacked substantive testimony from those closest to the child such as the foster parents, visitation supervisors, doctors, or teachers. The Court of Appeals noted that much of the record focused on the mother’s shortcomings rather than on the child and whether the child’s shortcomings stemmed from the mother’s parenting. The Court of Appeals also noted that the mental health therapist who had the most personal contact with the child recommended that a relationship continue between the mother and child and that severing the relationship would be “detrimental to [the child’s] well-being.” Lastly, the Court of Appeals concluded that termination of the mother’s rights was not in the child’s best interests because the mother had made progress in her parenting skills and that there existed a loving relationship between the mother and child. Read the full opinion.

LEGISLATIVE ACTIONS

LB 670 (Sen. Krist) – Require a hearing prior to release for persons taken into custody for mental health reasons

  • Last action – Hearing held in Judiciary Committee on February 17, 2016

 

LB 673 (Sen. Krist) – Change provisions relating to appointment of guardians ad litem

 

LB 675 (Sen. Krist) – Change provisions relating to placement and detention of juveniles

  • Last action – Hearing held in Judiciary Committee on January 20, 2016

 

LB 684 (Sen. Bolz and Sen. Kolterman) – Change provisions relating to exemption from an adoptive home study as prescribed

  • Last action – Placed on Final Reading on March 23, 2016

 

LB 697 (Sen. Howard) – Provide for a medicaid state plan amendment application relating to functional family therapy

  • Last action – Hearing held in Health and Human Services Committee on March 3, 2016

 

LB 707 (Sen. Coash) – Increase the number of judges of the separate juvenile court

  • Last action – Placed on General File on March 8, 2016

 

LB 709 (Sen. Howard) – Provide for an alternative to detention for juveniles

  • Last action – Hearing held in Judiciary Committee on January 20, 2016

 

LB 744 (Sen. Watermeier) – Provide for communication and contact agreements in private and agency adoptions

  • Watermeier priority bill
  • Last action – Advanced to Enrollment and Review with ER227 on March 29, 2016

 

LB 746 (Sen. Campbell) – Adopt the Nebraska SFA, change provisions for guardians ad litem and services for children, and create the Normalcy Task Force

 

LB 780 (Sen. Schumacher) – Change provisions relating to emergency protective custody

  • Last action – Hearing held in Judiciary Committee on February 3, 2016

 

LB 818 (Sen. Kolowski) – Change provisions relating to immunity when submitting a complaint under the Children’s Residential Facilities and Placing Licensure Act

  • Last action – Placed on General File on February 17, 2016

 

LB 843 (Sen. Pansing Brooks and Sen. Scheer) – Change provisions relating to prostitution

  • Pansing Brooks priority bill
  • Last action – Placed on Final Reading with ST72 on March 22, 2016

 

LB 845 (Sen. Pansing Brooks) – Provide requirements relating to confinement of juveniles and provide a duty for the Inspector General of Nebraska Child Welfare

 

LB 866 (Sen. Bolz) – Adopt the Transition to Adult Living Success Program Act

 

LB 867 (Sen. Murante) – Change provisions relating to the Administrative Procedure Act and require the Department of Correctional Services to adopt and promulgate rules and regulations

  • Legislative Performance Audit Committee priority bill
  • Last action – Placed on Final Reading with ST68 on March 21, 2016

 

LB 893 (Sen. Pansing Brooks) – Modify jurisdiction of juvenile courts and change provisions relating to temporary custody and disposition of juveniles

  • Last action – Hearing held in Judiciary Committee on January 22, 2016

 

LB 894 (Sen. Pansing Brooks) – Change provisions relating to appointment of counsel in juvenile cases

  • Judiciary priority bill
  • Last action – Placed on Final Reading with ST75 on March 23, 2016

 

LB 939 (Sen. Mello) – Adopt the Nebraska Early Childhood Advantage Act

  • Last action – Placed on General File with AM2221 on March 7, 2016

 

LB 954 (Sen. Krist) – Change provisions relating to access to records for and investigations by the Inspector General of Nebraska Child Welfare

  • Executive Board priority bill
  • Last action – Approved by Governor on March 7, 2016

 

LB 975 (Sen. Kolterman) – Adopt the Child Welfare Services Preservation Act

 

LB 998 (Sen. Schumacher) – Provide for emergency community crisis centers and change provisions relating to emergency protective custody

  • Last action – Hearing held in Health and Human Services Committee, on February 24, 2016

 

LB 1010 (Sen. Williams) – Change provisions relating to juvenile court petitions

  • Last action – Placed on Final Reading on March 24, 2016

 

LB 1034 (Sen. Campbell) – Change provisions relating to the Nebraska Children’s Commission

  • Last action – Placed on General File with AM2230 on March 7, 2016

ANNOUNCEMENTS

Appleseed’s 20th Anniversary Celebration

Save the date for Nebraska Appleseed’s 20th anniversary celebration in Lincoln! This year marks twenty years of Appleseed’s fight for justice and opportunity for all Nebraskans. Join us for a night of heavy hors d’oeuvres, live music, and short stories told live of creating change in Nebraska. Purchase tickets online here.

Appleseed Blog

Appleseed maintains a blog (on our recently updated website!) where you can read daily updates about our work to positively impact low-income families, immigrants, children in foster care, and access to health care.  Stop by and check it out!  Read, comment, and share your own stories with us at: neappleseed.org/blog

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