Foster Care Reform Update – October 30, 2015

IN THIS ISSUE

  • Policy Spotlight: Letting Kids Be Kids: The Implementation of the Strengthening Families Act in Nebraska
  • Court Opinions: In re Interest of Joseph S. et al., In Re Interest of Enyce J.
  • Legislative Actions: 2015 Child Interim Studies
  • Announcements: Through the Eyes of the Child Initiative Lecture Series 2015, Appleseed Blog

POLICY SPOTLIGHT

Letting Kids Be Kids: The Implementation of the Strengthening Families Act in Nebraska

In September 2014, Congress passed and President Obama signed the Preventing Sex Trafficking and Strengthening Families Act (also known as the Strengthening Families Act or SFA). Last week, a group of Nebraska child welfare stakeholders released a report with recommendations on how to best implement the SFA in Nebraska to improve outcomes for children and youth in the foster care system.

The report, “Letting Kids Be Kids: Nebraska’s Implementation of the Strengthening Families Act,” was compiled by the Strengthening Families Act stakeholder group with feedback from more than 300 stakeholders and young people, and it includes recommendations for how the SFA can ensure children and youth in foster care in Nebraska can have the same age- and developmentally-appropriate experiences as other kids that are essential for their healthy development – a practice known as “normalcy.”

The report was presented as part of LR 248, an interim study introduced by Sen. Kathy Campbell to examine the implementation of the SFA in Nebraska. At the interim study hearing, Jennifer Rodriguez, executive director of the Youth Law Center, spoke about her experiences growing up in foster care in California and as an attorney implementing normalcy laws. Jennifer Pokempner, from the Juvenile Law Center, provided an overview of the SFA, a review of what other states are doing to implement the federal law, and what states can learn from the normalcy laws that were enacted prior to the SFA.

The stakeholder group will be meeting in the coming months to consider identified issues for further discussion and to continue collaborating to maximize opportunities under the SFA in Nebraska.

Click here to read the Letting Kids Be Kids Fact Sheet

Click here to read the Normalcy Guide for Court Stakeholders

Click below to read local news coverage on the SFA and normalcy:

Lincoln Journal Star
The Omaha World Herald
The Associated Press
KLKN-TV
Nebraska Radio Network


COURT OPINIONS

In re Interest of Joseph S. et al., No. S-14-1025
Decided October 9, 2015

The Nebraska Supreme Court affirmed an order of the juvenile court that found the State had demonstrated by clear and convincing evidence that termination of a mother’s parental rights was appropriate and in the best interests of her three children. In this case, the Department of Health and Human Services (DHHS) instituted a voluntary case plan with a mother after she had tested positive for cocaine. After eight months of providing voluntary services to the mother, the State filed a petition alleging that the children were within the meaning of Neb. Rev. Stat. § 43-247(3)(a). Three months later, the State filed an amended petition alleging that the children were also within the meaning of § 43-292(2) and sought the termination of the mother’s parental rights because she had neglected the children and refused to give them proper support. At the adjudication hearing the State provided evidence that the mother consistently failed to comply with the goals of the voluntary case plan, that the mother’s home was not in a suitable condition at the end of the voluntary case plan, the mother consistently failed drug tests throughout the course of the voluntary case plan, and the State also presented evidence from a previous juvenile court proceeding involving the mother. The mother moved to bifurcate the adjudication and termination proceedings, but the juvenile court denied the motion and determined that the children were within the meaning §43-247(3)(a) but not within the meaning of § 43-292(2) because the State had failed to “present a prima facie case” for the termination of the mother’s parental rights. The State then appealed the decision in 2014 and alleged that the juvenile court erred in not terminating the mother’s parental rights. The Court of Appeals upheld the juvenile court’s decision, concluding that the juvenile court did not err in dismissing the State’s petition to terminate the mother’s parental rights because the State’s use of evidence during the mother’s voluntary case plan “was a violation of her due process rights.” The State then filed a petition for further review with the Nebraska Supreme Court and argued that the Court of Appeals erred in finding that there was insufficient evidence for the termination of the mother’s parental rights. The Nebraska Supreme Court determined the State’s use of evidence that the mother failed to comply with the voluntary services could be used by the State and found that the State made at least a prima facie case that the requirements of § 43-292(2) had been met.  Following the remand, the juvenile court held a termination hearing and found by clear and convincing evidence that the children were within the meaning of § 43-292(2) and that it was in their best interests to terminate the mother’s parental rights. The mother appealed the juvenile court’s order and alleged the juvenile court erred in finding clear and convincing evidence that the children were within the meaning of § 43-292(2), that it was in their best interests to terminate her parental rights, and that the juvenile court abused its discretion to bifurcate. The mother reasserted her argument that her due process rights were violated when she entered into the voluntary placement agreement. The Court first addressed the mother’s argument related to alleged violations of due process and noted that this issue was resolved in the Court’s first review of the case. The Court gave no instruction on remand to make further determinations of whether the mother’s due process rights were violated and therefore declined to address the issue in the present review. The Court next considered whether the State proved by clear and convincing evidence that termination of the mother’s parental rights was appropriate under § 43-292(2). The Court noted a parent’s failure to provide an environment to which her children can return could establish substantial, continual, and repeated neglect and that past neglect can properly be considered under § 43-292(2). The Supreme Court determined that the record showed a consistent pattern of noncompliance with voluntary services, the mother was inconsistent with visitation, she had repeatedly failed to put her children’s needs ahead of her own, and that it was not relevant that much of the mother’s conduct occurred when the children were not in her physical possession. Finally, the Supreme Court concluded that termination of the mother’s parental rights were in the best interests of the children because the mother was given a sufficient chance to rehabilitate herself, she failed to take advantage of those services, and the children were constantly moved in and out of the foster care system. Read the full opinion.

In re Interest of Enyce J., No. S-14- 1168
Decided October 16, 2015

The Nebraska Supreme Court affirmed an order by the juvenile court dismissing the foster parents’ petition to intervene and ordering that the child be placed with her maternal aunt. In this case, the State filed a petition alleging that the mother’s child was within the meaning of § 43- 247(3)(a) after the mother gave birth to her while she was incarcerated related to a homicide. The child was placed in foster care the day after her birth, and DHHS began looking for familial placements the following week. Three months later, the juvenile court held a hearing on the petition to adjudicate the child and the family permanency specialist testified that the maternal aunt was interested in caring for the child, but DHHS had to conduct an Interstate Compact for the Placement of Children (ICPC) investigation. Subsequently, the child’s foster parents sought to intervene in the case on the grounds that they had been the sole primary caretakers of the child since her birth, they had bonded with the child, and therefore they stood in loco parentis to the child. The mother then moved to have the child placed with her sister, the maternal aunt, and the juvenile court held a hearing on the mother’s motion the following month. At the hearing, DHHS indicated that the preferred placement was with the maternal aunt, the juvenile court agreed, and indicated that it would sustain the placement motion after the completion of the ICPC investigation. The following week, the juvenile court heard the foster parents’ motion to intervene, received the completed ICPC report, dismissed the foster parents’ motion, and ordered DHHS to “take immediate steps for the placement of the child” with the maternal aunt.  The foster parents appealed alleging that the juvenile court erred in concluding that the foster parents lacked standing to challenge the placement, in dismissing the complaint intervene, and then changing the child’s placement. The Supreme Court first concluded that the foster parents did not have standing to appeal the placement of the child because they did not have “a legal or equitable right, title, or interest in the subject matter of the controversy that gives them standing to appeal.” The Supreme Court reasoned that, although foster parents have a right to participate in review hearings, they do not have a legal interest in the child’s placement or stand in loco parentis to the child because they were not a “prospective adoptive placement,” the mother did not relinquish her rights to the foster parents, foster care is a short-term placement, the foster parents knew that DHHS was seeking relative placements for the child, and DHHS’ own regulations specifically limit the legal roles of a foster parent. The Supreme Court then determined that the juvenile court did not err in denying the foster parents petition to intervene because foster parents do not have a statutory right to intervene, the foster parents participation in a case is specifically described in § 43-1314, the rules for intervention require a “direct and legal interest” in the proceedings, and the juvenile court does not have the authority to allow foster parents to utilize equitable intervention as a court of limited and special jurisdiction. 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 – Hearing held in Judiciary Committee on October 23, 2015
  • Read Nebraska Appleseed and Voices for Children’s letter here

 

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

  • Last Action – Hearing held in Business and Labor Committee on September 25, 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 – Hearing held in Health and Human Services Committee on October 22, 2015
  • Read Nebraska Appleseed’s testimony here

 

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 – Hearing held in Judiciary Committee on October 9, 2015

 

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

  • Last Action – Notice of hearing in Appropriations Committee on December 1, 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 – Hearing held in Education Committee on September 10, 2015

ANNOUNCEMENTS

Through the Eyes of the Child Initiative Regional Conferences 2015

Click here to for more information and to register for the Through the Eyes of the Child Initiative’s 2015 Regional Conferences, with various trainings throughout the state in September.

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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