Foster Care Reform Update – June 2015

NE_Appleseed_Icons_SystemicReform-128In This Issue

  • Policy Spotlight: 2015 Child Welfare Legislative Recap
  • Court Opinions: In re Interest of Monty S. and Teresa S. v. Jason W. and Rebecca W., In re Interest of Zanaya W., In re Interest of Nery V.
  • Legislative Actions: 2015 Child Welfare Bills
  • Announcements: Appleseed at Urban Abbey, Appleseed Blog

Policy Spotlight

2015 Child Welfare Legislative Recap

The first session of the 104th Nebraska Legislature adjourned sine die on May 29, 2015. During this session, several important measures related to child welfare were debated, and many of them passed the Nebraska Legislature and have been signed into law.

LB 148: Introduced by Senator Sue Crawford, this bill would require that the Nebraska Department of Health and Human Services (DHHS) to automatically processes young adults for coverage under the new Medicaid category for former foster youth to age 26, as they age out of care so they do not experience an interruption in coverage. The bill would also require that DHHS develop outreach and procedures to enroll eligible young adults that have already exited the system and requires that Nebraska cover young adults who aged out of foster care in another state under this Medicaid category. LB 148 did not advance out of the Health and Human Services committee but will carry over into the next Legislative session.

LB 243: Introduced by Senator Kate Bolz, LB 243 created a pilot “family-finding” program that aims to establish connections between youth in foster care and their family members with the goal of achieving permanency through lifelong connections of support. Senator Bolz filed AM 1045 on April 1, 2015 which incorporated LB 441, a bill to cleanup certain aspects of and make recommended changes to the Bridge to Independence Act.The changes included in AM 1045 give young adults that were guardianshipped at age 16 or older the option to participate in the Bridge to Independence program (B2I) or the the extended guardianship program. The changes in AM 1045 also clarify that all young adults participating in B2I are eligible for medical assistance.  In addition, these changes include expanding eligibility for the programs to include young adults adjudicated  “under tribal law,” requiring confidentiality of the B2I case, and requiring juvenile courts to hold an “Independence Hearing” as part of the final court hearing before the youth ages out to discuss the youth’s future goals and to allow the court to advise the youth about their rights related to the Bridge to Independence Act.  LB 243 was passed and signed by the Governor.

LB 294:  Introduced by Senator Jim Scheer, LB 294 established the Human Trafficking Victims Civil Remedy Act which allows any trafficking victim to bring a civil action against any person who knowingly forced the youth into human trafficking. LB 294 also increases penalties for solicitation, pandering, keeping a place of prostitution, and for those that facilitate labor or sex trafficking. The bill also created the Human Trafficking Victim Assistance Fund and separately allowed for the State to utilize civil forfeiture proceedings against any property or assets used to traffick a young person.  LB 294 was passed with an emergency clause and signed by the Governor.

LB 566: Introduced by Senator Colby Coash, LB 566 clarifies aspects of Nebraska’s Indian Child Welfare Act (ICWA).  Among other things, this bill defines terms of art such as “active efforts,” “qualified expert witness,” and “best interests of the Indian child.” LB 566 also adds procedures that apply in non-court involved foster care cases and ensures that several protections of the ICWA apply in non-court involved cases. Finally, LB 566 modifies the ICWA’s placement preferences by adding a preference for non-Native families “committed to enabling the child to have extended family time and participation in the cultural and ceremonial events of the Indian child’s tribe or tribes” and by clarifying that the placements are in descending priority order. LB 566 was passed and signed by the Governor.

LB 648: Introduced by Senator Jeremy Nordquist, LB 648 allowed for two qualified adults, of the same-sex, to become foster parents in Nebraska. While the bill was not voted out of the Judiciary Committee, it will carry over into the next Legislative session. Practitioners should also note that there is pending litigation brought by the ACLU of Nebraska that could require DHHS to change its policy prohibiting same-sex couples from becoming foster parents before the legislative session next year.

Click here to see a chart of final actions on all child welfare and juvenile justice bills tracked this session by Nebraska Appleseed and our friends at Voices for Children in Nebraska.

Court Opinions

Monty S. and Teresa S. v. Jason W. and Rebecca W., No. S-14-879
Decided May 29, 2015

The Nebraska Supreme Court affirmed the order of the district court which concluded that the consent and relinquishment of the rights of biological parents were invalid because private adoptions signed with the promise of being “open” are invalid. In this case, a couple “felt sorry” for their friends that were unable to have children of their own and informally agreed to conceive a child and give that child to their friends for a private placement adoption. From the beginning of this arrangement, both couples agreed that the biological parents would be a part of the child’s life and intended to have an “open adoption.” Two days after the birth of the child both couples rode together to an attorney’s office so the biological parents could sign documents relinquishing their parental rights. A year later the biological couple filed a petition for habeas corpus seeking return of the child alleging that their consents and relinquishments were invalid due to fraud, duress, and the failure to present the nonconsent adoption forms. The district court rejected all of the biological parents arguments, but still invalidated the adoption because the “parties’ plan for an open adoption invalidated the relinquishments as conditioned upon the retention of some parental rights.” The adoptive couple appealed and alleged that the district court erred in excluding evidence of post-relinquishment visits from the biological couple and in holding that the consents were conditioned on the retention of parental rights. The Nebraska Supreme Court first determined that the district court’s failure to allow evidence of the biological mother’s frequent visitation was harmless error because the adoptive couple prevailed on the issues of fraud and misrepresentation and the visitation was not relevant to whether the adoption agreement itself was unlawful. The Supreme Court then concluded that the district court correctly determined that the biological parents’ relinquishments were invalid because Nebraska precedent explicitly prohibits the relinquishment of parental rights “conditioned upon the retention of some parental rights.” The Supreme Court noted that the Nebraska Legislature chose to validate such arrangements for children adopted from the foster care system in 1993, but Neb. Rev. Stat. § 43-163 does not apply to private adoptions. Read the full opinion.

 

In re Interest of Zanaya W., No. S-14-550
Decided June 5, 2015

The Nebraska Supreme Court affirmed an order of the juvenile court which separately terminated the parental rights of a mother and father. In this case, the State filed a petition alleging that the children were within the meaning of § 43-247(3)(a) as to the mother because she failed to provide them with safe housing and had failed to participate in mental health treatment. The mother was then ordered to submit to random drug and alcohol testing, to work with her psychiatrist on medication management, to participate in substance abuse and mental health therapy, and to engage in supervised visitation with the children. The mother only attended visitation and therapy sporadically over the next several months and the Department of Health and Human Services (DHHS) stopped making efforts to reunify the mother with the children when DHHS placed the children with their father and the mother moved to Detroit. However, the father was arrested for possession and intent to distribute marijuana and the State filed a supplemental petition alleging the children were within the meaning of § 43-247(3)(a) as to the father. The father admitted the allegations in the petition to adjudicate the children and was eventually sentenced to three years in prison on his criminal charges. The mother returned to Nebraska at this time and the juvenile court permitted her to continue visitation with the children and required her to submit to random drug and alcohol testing. Subsequently, the State filed a petition to terminate the father’s rights pursuant to §§ 43-292(2) and (7) and the mother’s rights pursuant to §§ 43-292(2), (6), and (7). The father again admitted the allegations that he had repeatedly neglected and refused to give the children proper care and voluntarily agreed to the termination of his parental rights. The juvenile court then found that the State had presented clear and convincing evidence that the children were within the meaning of § 43-292(2) as to the mother and that termination of her rights was in the children’s best interests. Both parents appealed and the Supreme Court consolidated the cases for review. The father alleged that the juvenile court erred in terminating his parental rights because there was not a sufficient factual basis to support his admissions and the State failed to present sufficient evidence to terminate his parental rights pursuant to §§ 43-292(2) and (7). The mother alleged that the juvenile court deprived her of a fundamentally fair process by allowing the state to proceed to termination under §§ 43-292(2), (6), and (7) instead of § 43-292(5), “when the State was fully aware [she] was mentally ill and that her mental illness affected her capacity to parent.” The Nebraska Supreme Court first analyzed the father’s allegations of error that there was not a sufficient factual basis to terminate his parental rights. The Supreme Court noted that the father argued that the State failed to meet its burden of proof pursuant to § 43-292(7), but did not address these arguments because the father admitted the allegations pursuant to § 43-292(2) and the juvenile court did not utilize § 43-292(7) in terminating his parental rights. The father then argued that the State failed to put forth a factual basis to support the allegations in the petition related to § 43-292(2) as required by § 43-279.01(3). The Supreme Court determined that the State had met its obligation by producing evidence that the father was convicted of possession with intent to distribute marijuana, the father was sentenced to an additional 120 days in prison for assaulting another prisoner, and the father used marijuana on a daily basis while the children were in his custody. Finally, the Supreme Court determined that the juvenile court did not err in finding termination of the father’s parental rights was in the best interest of the children because a caseworker would have testified that termination was in the children’s best interests due to the length of the father’s prison term. The Supreme Court then considered the mother’s argument that her due process rights had been violated because the State could only terminate her rights pursuant to § 43-292(5) because of her mental illness. The Supreme Court first noted that a similar argument had been raised and rejected in a prior Supreme Court decision in a divided opinion and that the mother advocated for the current court to overrule the previous decision and adopt the reasoning of the dissent. However, the Nebraska Supreme Court concluded that the issue was not properly before them because the mother did not raise this issue in the trial court and the juvenile court did not commit plain error failing to sua sponte direct the State to proceed solely under § 43-292(5). Read the full opinion.

 

In re Interest of Nery V., A-14-654,
Decided June 9, 2015

The Nebraska Court of Appeals affirmed an order of the juvenile court which denied a Tribe’s motion to change the placement of three minor children. The Court of Appeals concluded that the State met its burden in showing that there was good cause to deviate from the placement preferences in the Indian Child Welfare Act (ICWA). In this factually complicated case, the children were removed from their parents’ care in 2010 and the mother requested that the children be placed with their current foster parents without objection from any party. In 2011, the Tribe intervened in the case and filed a motion in 2013 to change the placement of the children to the home of their maternal aunt. Thereafter, the mother filed a “Withdrawal of Consent of Placement in Non-Indian Home” and DHHS objected because the children had been placed with their foster parents for three years, the maternal aunt was not recommended for placement after three DHHS home studies, a new placement would traumatize the children, and the change in placement was not in their best interests. The juvenile court held a hearing on the matter and overruled the Tribe’s motion to change placement because the State had presented sufficient evidence that there was good cause to deviate from the ICWA’s placement preferences because the maternal aunt lived in a small trailer home, the maternal aunt worked long shifts on the weekend, the maternal aunt was unrealistic about parenting the children due to her financial situation, the mother had previously consented to the foster family caring for the children, DHHS exercised due diligence in trying to find alternative family placements, and it was in the children’s best interests to stay in their current placement. The Tribe appealed the juvenile court’s decision and alleged the juvenile court erred in finding good cause to deviate from the ICWA’s placement preferences and in finding that DHHS exercised due diligence in trying to comply with the ICWA. The Court of Appeals concluded that the juvenile court did not err in finding there was good cause to deviate from the placement preferences, despite the maternal aunt being in the children’s extended family, because the children had been placed with their foster parents for three years, DHHS’ concerns of the maternal aunt’s ability to parent the children had not been alleviated, DHHS had made continued attempts to find a suitable family through working with the Tribe, the children were doing well in school, and a change in placement would be harmful to the children’s well being. The Court of Appeals then concluded that the State had shown that active efforts have been provided to prevent the breakup of the Indian family by a preponderance of the evidence because DHHS had exercised due diligence in trying to find alternative family placements for the children and the children’s foster parents have made efforts to connect the children to the tribe. However, the Court of Appeals did note there was “concern” that these efforts may not survive a test under the clear and convincing burden of proof necessary to terminate parental rights because the maternal aunt and other family members have been denied visitation and DHHS has offered no services in light of those relationships. Read the full opinion.

Legislative Actions

LB 13 (Sen. Krist) Change Community-based Juvenile Services Aid Program provisions

  • Last Action- Motion to suspend rules to indefinitely postpone filed on May 28, 2015

 

LB 15 (Sen. Krist) Provide additional powers and duties for guardians ad litem

  • Krist priority bill
  • Last Action- Approved by Governor on April 29, 2015.
  • Click here to read Appleseed’s testimony

 

LB 25 (Sen. Krist) Change court jurisdiction relating to 17 year olds and young adults

  • Last Action- Placed on General File with AM605 on March 6, 2015

 

LB 44 (Sen. Coash) Change provisions relating to a notice of objection to adoption

  • Last Action- Hearing held in Judiciary Committee on January 23, 2015

 

LB 87 (Sen. Campbell) Change membership of the Nebraska Children’s Commission

  • Last Action- Approved by Governor on March 5, 2015

 

LB 148 (Sen. Crawford) Provide for medical assistance program coverage for certain youth formerly in foster care

  • Last Action- Hearing held in Health and Human Services Committee on January 30, 2015
  • Click here to read Appleseed’s testimony

 

LB 199 (Sen. Howard) Provide for stipends for social work students

  • Howard priority bill
  • Last Action – Approved by Governor on May 27, 2015

 

LB 212 (Sen. Chambers) Prohibit use of restraints in juvenile courts as prescribed

  • Last Action- Hearing held in Judiciary Committee on February 25, 2015

 

LB 219 (Sen. Crawford) Change and eliminate child custody provisions and adopt the Uniform Deployed Custody and Visitation Act

  • Last Action- Approved by Governor on February 26, 2015

 

LB 229 (Sen. Watermeier) Appropriate funds to the Supreme Court for court appointed special advocate state aid

  • Last Action: Hearing held in Appropriations Committee on March 10, 2015

 

LB 243 (Sen. Bolz) Create a pilot project relating to family finding services

  • Bolz priority bill
  • Last Action- Approved by Governor on May 27, 2015

 

LB 265 (Sen. Campbell) Change provision relating to juveniles and child welfare

  • Judiciary Committee priority bill
  • Last Action- Approved by Governor on May 27, 2015

 

LB 292 (Sen. Coash) Change provisions relating to the central registry of child protection cases

  • Coash priority bill
  • Last Action- Approved by Governor on May 27, 2015
  • Click here to read Appleseed’s testimony

 

LB 294 (Sen. Scheer) Adopt the Human Trafficking Victims Civil Remedy Act and change and adopt provisions relating to service of process, sexual assault, crimes relating to morals, human trafficking, search warrants, juveniles, intercepted communications, and forfeiture of assets

  • Scheer priority bill
  • Last Action- Approved by Governor on May 19, 2015.
  • Click here to read Appleseed’s letter in support

 

LB 296 (Sen. Kolterman) Require the Department of Health and Human Services to provide notification after removal of a child

  • Last Action- Approved by Governor on May 26, 2015
  • Click here to read Appleseed’s testimony

 

LB 302 (Sen. Campbell) Create the offense of rehoming a child

  • Last Action- Hearing held in Judiciary Committee on February 27, 2015
  • Click here to read Appleseed’s letter in support

 

LB 347 (Sen. Krist) Expand the jurisdiction of the Inspector General to the juvenile justice system

  • Speaker priority bill
  • Last Action-  Approved by Governor on May 27, 2015

 

LB 358 (Sen. Garrett) Change paternity provisions for a child conceived as a result of sexual assault

  • Last Action- Hearing held in Judiciary Committee on March 18, 2015

 

LB 430 (Sen. Mello) Change appropriation provisions

  • Last Action- Approved by Governor on February 26, 2015

 

LB 441 (Sen. Bolz) Change provisions relating to the bridge to independence program

  • Last Action- Placed on General File on March 9, 2015
  • Click here to read Appleseed’s testimony
  • Click here to read Appleseed’s fact sheet

 

LB 459 (Sen. Crawford) Change provisions relating to a deposition of a child victim or child witness

  • Last Action- Placed on General File with AM364 on March 17, 2015

 

LB 482 (Sen. Krist) Change provisions relating to juveniles

  • Judiciary Committee priority bill
  • Last Action- Approved by Governor on April 29, 2015

 

LB 485 (Sen. Stinner) State intent relating to appropriations for child welfare

  • Last Action- Hearing held in Appropriations Committee on March 17, 2015

 

LB 500 (Sen. Howard) Require application for Medicaid State Plan Amendment for Multisystemic Therapy and Functional Family Therapy

  • Speaker priority bill
  • Last Action- Approved by Governor on May 27, 2015
  • Click here to read Appleseed’s testimony

 

LB 566 (Sen. Coash) Change provisions of the Indian Child Welfare Act

  • State-Tribal Relations Committee priority bill
  • Last Action- Approved by Governor on May 27, 2015
  • Click here to read Appleseed’s testimony

 

LB 647 (Sen. Nordquist) Prohibit discrimination relating to child placement

  • Last Action- Hearing held in Judiciary Committee on February 4, 2015
  • Click here to read Appleseed’s testimony

 

LB 648 (Sen. Howard) Provide for adoption by two adult persons

  • Last Action- Hearing held in Judiciary Committee on February 4, 2015

 

Announcements

Urban Abbey and Nebraska Appleseed

It’s not every day that your cup of coffee can support justice for all, but it can during the month of June! Appleseed is excited to renew our community partnership throughout the month of June with our friends at the Urban Abbey coffee shop in Omaha. Attend these events this month and part of your coffee purchases will go to benefit Appleseed’s work!

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: http://www.neappleseed.org/blog

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