Foster Care Reform Update 07/27/2015

In This Issue

  • Policy Spotlight: Court victory allows children access to vital behavioral health treatments
  • Court Opinions: In re Interest of Trenton W. et al., In re Interest of Jassenia H., In re Interest of Jahon S., In re Interest Estrellita L., In re Interest Lindsey W. & Victoria W.
  • Legislative Actions: 2015 Child Welfare Interim Studies
  • Announcements: Appleseed Blog

Policy Spotlight

Court victory allows children access to vital behavioral health treatments

On June 30, 2015 Lancaster County District Court Judge John Colborn issued an order protecting the rights of Nebraska children with autism and developmental disabilities to get vitally important behavioral health treatments through the Medicaid program.

The case, K.D. & S.L. v. Winterer, was filed on behalf of two Nebraska children who each have serious behavioral and mental health conditions, but had been denied coverage for necessary treatments recommended by their doctors.  The suit challenged a Nebraska Department of Health and Human Services’ (HHS) policy that excludes Medicaid coverage of certain treatments for children with developmental disabilities.  This decision granted the plaintiff children’s motions for class certification and summary judgment.  As a result of the judge’s order, HHS can no longer enforce these policies which have been determined by the court to be unlawful.

This ruling is an important victory for Nebraska families with children who have been wrongfully denied access to essential mental and behavioral health treatments that were recommended by their doctors. The Court’s ruling will allow more children to get the care they need to have the best possible future. With the order now in effect, work has begun with HHS to begin covering these vital treatments immediately for the hundreds of Nebraska children who need them.

The children in this case were represented by Nebraska Appleseed, the National Health Law Program, and Husch Blackwell LLP. If you have any questions about this case or its impact on children you are representing, please contact Sarah or Robbie at Nebraska Appleseed.

Court Opinions

In re Interest of Trenton W. et al., Nos. A-14-841, A- 14-845
Decided June 16, 2015

The Nebraska Court of Appeals reversed an order of the juvenile court determining that five children were within the meaning of Neb. Rev. Stat. § 43-247(3)(a). The Court of Appeals concluded there was insufficient evidence to support the adjudications as to the father because the State had failed to prove that the children were at a definite risk of immediate harm due to the father’s actions. Furthermore, the Court of Appeals concluded that mother did not properly appeal and therefore the juvenile court’s adjudication remained in effect as to her. In this case, the State filed petitions stating each of the children fall within the meaning of § 43- 247(3)(a) for neglect and lack of parental care by reason or fault of both of the parents when three of the five children were found alone in a hotel room while Child Protective Services (CPS) was investigating a report that the parents had used prescription drugs and alcohol. Both parents appealed alleging that the juvenile court erred in failing to provide sufficient evidence to support the adjudication and the father alleged the court erred in overruling his objections to the admission of certain evidence concerning issues not raised in the petition for adjudication. However, because the mother failed to perfect her appeal the Nebraska Court of Appeals considered only the father’s allegations. The Court of Appeals first determined that the juvenile court erred in admitting certain evidence because the petition did not contain any specific factual allegations, there was no affidavit accompanying the petition, and the affidavit included with the motions for temporary custody filed that same day, cannot act as a “substitute for the requirements of § 43-274 that the petition…set [] forth the facts verified by affidavit.” However, the father did not contest the sufficiency of notice with respect to evidence that he left his 12-year-old daughter to babysit his other children at a motel and that he had drank heavily once while in the company of his children. Therefore, the Court of Appeals analyzed these two facts and concluded that the State had failed to present sufficient evidence to prove that the children were within the meaning of § 43-247(3)(a) because there was not a definite risk of future harm to the children, “plenty” of children that are the same age as the eldest child are responsible enough to care for other children, the father checked on the children frequently, the oldest child knew to call 911 in an emergency, and a family friend was going to help the family.  Read the full opinion.

 

In re Interest of Jassenia H., No. S-14- 1076
Decided June 12, 2015

The Nebraska Supreme Court dismissed an appeal by the child’s Guardian Ad Litem (GAL) because a finding that the Nebraska Child Indian Welfare Act (NICWA) applies in a case, without any other action, is not a final appealable order. In this case, the State filed a petition alleging that the child was within the meaning of § 43-247(3)(a) based on the mother’s prior extensive history with Child Protective Services with her other children. The Department of Health and Human Services (DHHS) was granted temporary custody of the minor child and subsequently the juvenile court determined the child was eligible for enrollment in the Oglala Sioux Tribe based on the mother’s enrollment status. The GAL of the child appealed and attempted to argue that the NICWA did not apply to this child because the mother of the child expressed a desire to relinquish her parental rights and therefore would, “not lead to the dissolution of an Indian family.” The Supreme Court concluded that they did not have jurisdiction to hear the appeal because the GAL failed to identify any substantial right that was affected by the juvenile court’s finding that NICWA applied to the proceedings without another action. The Nebraska Supreme Court reasoned that that the heightened protections of the NICWA have no effect upon the adjudication proceedings until the parent, child, or tribe invokes one of the protections. Therefore the Court of Appeals concluded that the juvenile court’s order was interlocutory in nature not appealable. Read the full opinion.

 

In re Interest of Jahon S., No. S-14-1049
Decided June 12, 2015

The Supreme Court of Nebraska affirmed the juvenile court’s order terminating a father’s parental rights to his child. The Supreme Court concluded that the juvenile court did not err in determining that the child was within the meaning of § 43-292(2) and that it was in the best interest of the child to terminate the father’s parental rights. In this case, the child was born in November 2013 while his father was serving a prison sentence for felony drug possession. The child was placed in emergency custody of DHHS pursuant to § 43-247(3)(a). In March 2014, the caseworker testified that it was in the child’s best interest to terminate the father’s parental rights because the child has been in foster care for the entirety of his life and it would be unlikely for the father to make sufficient progress towards reunification due to his incarceration. In an order entered October 29, 2014 the juvenile court terminated the father’s parental rights to his child pursuant to § 43-292(2). The father filed a motion to reconsider on the basis that the father’s incarceration was a material factor to the termination of parental rights and he would be eligible for parole on November 2, 2014. The juvenile court overruled the motion stating the court’s decision was not based solely on the father’s release date. The father appealed and alleged that the juvenile court erred in finding his parental rights should be terminated pursuant to § 43-292(2) and in finding termination was in the best interest of the child. The Supreme Court concluded that the State had shown that the child was within the meaning of § 43-292(2) by clear and convincing evidence because the father’s parental rights were previously terminated to his three other children. While the Supreme Court noted that incarceration cannot be the sole basis for terminating parental rights, it is a factor to be considered, along with the father’s assault charges while incarcerated. The Nebraska Supreme Court concluded that it was in the child’s best interests to terminate the father’s parental rights because the State had provided evidence that the father would be unable to perform his essential parental duties due to his incarceration, the child has never been in the father’s care, there was no basis to believe that the father would be able to parent the child in the foreseeable future, and that the child should not be required to be suspended in foster care while waiting for his parent to mature. Read the full opinion.

 

In re Interest Estrellita L., No. A-14- 1031
Decided June 30, 2015 (Not designed for permanent publication)

The Nebraska Court of Appeals affirmed the judgment of the juvenile court which denied the State’s motion for establishing guardianship for the minor child. In this memorandum opinion, the Nebraska Court of Appeals determined that reasonable efforts towards reunification of the child with her natural parents is required in this case in accordance with § 43-283.01. In this factually complex case, the State filed a petition alleging that the child was within the meaning of § 43-247(3)(a) because she had endured burns over 70% of her body and her parents had not demonstrated an ability to provide a safe and stable home environment given her heightened medical needs. Three years later the State filed a motion to establish guardianship through alternative disposition. A trial on the issue took place over the course of ten months and seventeen court dates. The juvenile court concluded that the State had failed to show that sufficient reasonable efforts had been made pursuant to § 43-283.01(3) and cited multiple unresolved barriers such as language, geographical location between the parents and the foster home, and transportation to medical appointments and visits. The State appealed the juvenile court’s determination and alleged that the court utilized an incorrect standard in its analysis of reasonable efforts, that guardianship was in the child’s best interests, and the court failed to address all of the medical expert testimony in the case. The Nebraska Court of Appeals determined that jurisdiction was proper in this case because the order denying the State’s motion for guardianship substantially affected the legal rights and obligations of the State. The Court of Appeals then recognized that the State had standing present a permanency plan, over the objections of DHHS, because the juvenile code does not explicitly prevent the county attorney from filing a motion to change a designated permanency plan and because the State has a parens patriae interest in protecting the child. The Nebraska Court of Appeals then analyzed the merits of the State’s appeal and concluded that the State failed to prove that reasonable efforts had been made pursuant to § 43-283 because of the significant barriers impeding reasonable efforts including the geographical location of the parents and the child, the foster mother and the parents have not always been able to work as a team, the language barrier, and the family’s limited financial resources. The Nebraska Court of Appeals rejected the State’s argument that the juvenile court had employed an incorrect standard in analyzing reasonable efforts because the juvenile court was essentially determining that the particular circumstances of the case required further efforts to be made. Finally, the Court of Appeals determined the juvenile court did not err in finding that it in the child’s best interest to continue attempts to reunify with her parents because the juvenile court had the opportunity to weigh conflicting evidence and properly exercised discretion in giving more weight to expert medical testimony that contradicted the State’s position, there was no evidence presented that the parents had ever harmed the child by the care they provided, and the father’s past criminal history and current immigration status were too speculative to consider in this case. Read the full opinion.

 

In re Interest Lindsey W. & Victoria W., No. A-14- 1074
Decided June 30, 2015 (Not designated for permanent publication)

The Nebraska Court of Appeals affirmed an order of the juvenile court, which terminated the parental rights of the father to his twin daughters. In a memorandum opinion, the Court of Appeals concluded that the juvenile court did not err in terminating a father’s parental rights because the children had been in an out-of-home placement for 15 or more of the most recent 22 months and that termination of his parental rights was in the best interests of the children. In this case, the children were removed from the parental home and placed in foster care due to domestic violence in the home while the children were present. Over the course of next four years the father struggled to consistently provide his daughters the structure and developmentally appropriate parenting they needed. The children in this case were both diagnosed with PTSD and failure to thrive as infants; were developmentally delayed, and had developed behavior and anxiety issues. The State filed a motion seeking to terminate the father’s parental rights pursuant to § 43-292(2), (6), and (7). The State produced evidence that the father has not demonstrated a consistent understanding of the girls’ developmental needs, communication needs, or age appropriate behaviors and had not demonstrated substantial progress to prove he was able to appropriately parent his children independently even though the father had complied with the case plan and court orders in the case. The juvenile court terminated the father’s parental rights and the father appealed alleging that the juvenile court erred in finding that a statutory ground existed to terminate his rights and that termination was in the children’s best interests. The Court of Appeals first determined that, because the State had shown by clear and convincing evidence that the children had been in an out of court placement for at least 15 of the most recent 22 months, it was only necessary to determine whether the termination of the father’s rights was in the best interests of the children. The Nebraska Court of Appeals then analyzed whether it was in the children’s best interest to terminate the father’s parental rights and concluded that termination was appropriate because the children were placed out-of-home for 43 months, the father failed to sufficiently “learn” how to parent his children, he had not demonstrated an ability to independently parent his daughters with special needs. The Court of Appeals did note that they were “appreciative of the fact” that the juvenile court had granted the father continuing supervised visitation after the termination of his parental rights because of his love and bond with the children.

Read the full opinion.

 

Legislative Actions

LR 52 (Sen. Campbell) Interim study to examine the Child and Maternal Death Review Act

  • Last Action – Referred to Health and Human Services Committee on May 21, 2015

 

LR 186 (Sen. Morfeld)  Interim study to examine state services available to victims of human trafficking in Nebraska

  • Last Action – Referred to Judiciary Committee on May 21, 2015

 

LR 222 (Sen. Crawford)  Interim study to examine issues relating to family and medical leave

  • Last Action – Referred to Business and Labor Committee on May 21, 2015

 

LR 227 (Sen. Harr)  Interim study to examine opportunities to train Nebraska’s youth for the workforce while addressing both educational and workforce needs

  • Last Action – Referred to Business and Labor Committee on May 21, 2015

 

LR 242 (Sen. Coash) Interim study to examine the interplay between developmental disability and child welfare services to ensure proper treatment and protection of the rights of state wards

  • Last Action – Referred to Health and Human Services Committee on May 21, 2015

 

LR 248 (Sen. Campbell) Interim study to examine the federal Preventing Sex Trafficking and Strengthening Families Act and its implementation in Nebraska

  • Last Action – Referred to Health and Human Services Committee on May 21, 2015

 

LR 249 (Sen. Coash) Interim study to examine the use of seclusion in public and private schools for children with behavioral issues or special needs

  • Last Action – Referred to Education Committee on May 21, 2015

 

LR 275 (Sen. Mello) Interim study to examine issues surrounding the affordability, delivery, and taxation of child care in Nebraska

  • Last Action – Referred to Health and Human Services Committee on May 21, 2015

 

LR 276 (Sen. Pansing Brooks) Interim study to examine bullying by and against students and youth

  • Last Action – Referred to Judiciary Committee on May 21, 2015

 

LR 282 (Sen. Mello) Interim study to examine the reasons for the higher cost of juvenile services under the Office of Probation Administration

  • Last Action – Referred to Appropriations Committee on May 21,2015

 

LR 292 (Sen. Campbell) Interim study to examine issues relating to public assistance programs for relative or kinship caregivers

  • Last Action – Referred to Health and Human Services Committee on May 21, 2015

 

LR 295 (Sen. Bolz)  Interim study to examine how to improve behavioral health and mental health services in Nebraska in order to prevent crime and reduce costs associated with the incarceration of people who have heightened behavioral and mental health needs

  • Last Action – Referred to Judiciary Committee on May 21, 2015

 

LR 296 (Sen. Bolz) Interim study to examine the financing of Nebraska’s child welfare system

  • Last Action – Referred to Appropriations Committee on May 21, 2015

 

LR 300 (Sen. Campbell) Interim study to examine the out-of-state placements of Nebraska children

  • Last Action – Referred to Health and Human Services Committee on May 21, 2015

 

LR 304 (Sen. Campbell) Interim study to examine and assess the behavioral health needs of children and youth in Nebraska and the resources available to meet those needs

  • Last Action – Referred to Health and Human Services Committee on May 21, 2015

 

LR 312 (Sen. Harr) Interim study to examine ways to improve and fund child behavioral health programming in Nebraska

  • Last Action – Referred to Health and Human Services Committee on May 21, 2015

 

LR 334 (Sen. Morfeld) Interim study to examine the integral link between achievement and risky health behaviors

  • Last Action – Referred to Education Committee on May 21, 2015

 

Announcements

Nebraska State Bar Association Indian Child Welfare Act Training

Nebraska Appleseed will be presenting at the Nebraska State Bar Association’s Juvenile Law Update CLE on Wednesday, August 19, 2015 from 12:30-4:45 p.m. The schedule includes:

12:30- 2:30 The Nebraska Indian Child Welfare Act in 2015

2:45 – 3:45 Legislative Update on Child Welfare and Juvenile Justice

3:45- 4:45 LB 15 and the Newly Adopted GAL Guidelines

The Juvenile Law Update will be held at Metropolitan Community College, Fort Omaha Campus (Building 10, Room 110) at 5300 North 30th, Omaha, NE 68111. This will count as 4 CLE hours and should qualify for GAL credit. Click here for more information and to register.

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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