Foster Care Reform Update – May 3, 2016

IN THIS ISSUE

  • Policy Spotlight: 2016 Child Welfare Legislative Recap
  • Court Opinions: In re Interest of Giavonna G.
  • Legislative Actions: 2016 Child Welfare Legislative Bills and Interim Studies

POLICY SPOTLIGHT

2016 Child Welfare Legislative Recap

The second session of the 104th Nebraska Legislature adjourned sine die on April 20, 2016. During this session, several important measures related to child welfare and juvenile justice were debated, and many of them passed the Nebraska Legislature and have been signed into law.

LB 746: Introduced by Senator Kathy Campbell, the Nebraska Strengthening Families Act (NSFA) increases normalcy for youth in foster care by reducing barriers to age and developmentally appropriate activities. Through the Reasonable and Prudent Parent Standard, foster parents will be able to make day-to-day decisions regarding in what extracurricular, enrichment, cultural and social activities youth can participate. The NSFA will further empower older youth in foster care by notifying them of their rights, through increased involvement in the development of their case plan, and by providing youth with important documents such as their birth certificate and medical records before aging out of the system. LB 746 also limits the use of Another Planned Permanent Living Arrangement (or independent living) to youth over age 16. LB 1034, also introduced by Sen. Campbell was amended into LB 746. LB 1034 extends the Nebraska Children’s Commission and changes provisions to include juvenile justice system to their strategic planning, to review out-of-home placements utilized in the juvenile justice system, to develop a system of care plan and to analyze and make recommendations regarding case management workforce issues. LB 746, including LB 1034, was passed and signed by the Governor.

LB 894: introduced by Senator Patty Pansing Brooks, made changes relating to a juvenile’s rights to counsel. LB 894 was passed as a juvenile justice package, with five additional legislative bills amended into it: LB 673, 675, 709, 845 and 893. Among other things, the bill requires law enforcement to use developmentally appropriate language regarding juvenile’s right to counsel. In counties with a population of 150,000 or more, counsel must be appointed for any juvenile within the meaning of subdivision (1), (2), (3)(b), or (4) of Neb. Rev. Stat. § 43-247. LB 894 also modifies the mechanism for how a waiver of the right to counsel is made. LB 673, originally introduced by Senator Bob Krist, changed provisions relating to the appointment of guardians ad litems. LB 673 permits counties to create a guardian ad litem (GAL) division and prioritizes the appointment of counsel to the GAL division, if a county chooses to create such an office, and specifies that GALs within the division must receive the same annual salary of each deputy county attorney of comparable ability and experience receives in such counties. It also permits juvenile courts to appoint counsel outside of a county division when there is a conflict of interest or a juvenile court judge determines it is in the child’s best interests. LB 845, also introduced by Sen. Pansing Brooks, includes definitions and standards relating to confinement of juveniles, including the recording and reporting of juveniles in solitary confinement. When youth are assigned to room confinement, staff at the facility must record information regarding the juvenile and the situation. Facilities are required to report to the Legislature and the Inspector General of Nebraska Child Welfare is directed to review all data reported to the Legislature. LB 894 and the juvenile justice package was passed and signed by the Governor.

LB 866: introduced by Senator Kate Bolz, would have created the Transition to Adult Living Success Program to provide extended services to young people aging out of the juvenile justice system. In order to participate,young adults must have aged out of the juvenile justice system with an adjudication under 43-247(1),(2), or (3)(b) and have spent at least 90 out of the 180 days preceding his or her 19th birthday in out-of-home care. Program participants would be provided with case management and independent living services, including help with housing, life skills training, and education or employment assistance until age 21. They would have been eligible to receive up to $1,000 in assistance for critical needs, such as food, shelter, health care, clothing, or other needs as approved by their caseworkers. LB 866 was not passed and was indefinitely postponed.

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

In re Interest of Giavonna G., No. A-15-470
Filed March 29, 2016

The Nebraska Court of Appeals reversed and remanded an order of the juvenile court which terminated the parental rights of a father.  The Court of Appeals concluded that the State failed to adduce clear and convincing evidence that termination of the father’s parental rights was in the child’s best interests and remanded the case for further proceedings.  In April 2013, the child was placed in DHHS custody and the State filed a petition alleging the child came within the meaning of § 43-247(3)(a) because the father failed to provide safe, stable, and/or appropriate housing and failed to provide proper parental care, support, and supervision and thus placed the child at risk for harm.  The father denied the allegations but the juvenile court found it was in the child’s best interests to remain in the custody of DHHS and to exclude the home of the father from placement.  At an adjudication hearing, the juvenile court ordered the father to obtain safe, stable, and adequate housing and to obtain a legal, stable source of income, and have reasonable rights of supervised visitation.  At a September 2013 hearing, a family permanency specialist testified that the father participated in visited, maintained housing and employment, and expressed a desire to have placement of the child.  The juvenile court ordered the father to continue working on the objectives previously ordered and to complete a psychological evaluation.  At a disposition hearing in November 2013, the father’s psychological evaluation was considered in evidence and though there were no significant concerns regarding his parenting or parent-child interactions, the evaluation suggested he may benefit from interventions designed to assist him with coping with daily stressors.  The juvenile court ordered the father to participate in therapy and submit to baseline urinalysis and for visits to be terminated if the father fell asleep during visitation.  In August 2014, the State filed a motion for termination of the father’s parental rights alleging that the child was within the meaning of § 43-292(2), (6), and (7) and that termination was in the child’s best interests.  The petition further alleged that the father failed to consistently visit the child, obtain and maintain safe, stable, and appropriate housing; consistently attend individual therapy; consistently submit to urinalysis testing in a timely manner; and utilize services offered.  At the hearing on the termination of the father’s parental rights a program support worker testified that the father had to be prompted to interact with the child at visitations and be prompted to clean up the child when she got messy.  She testified to five canceled visits in two months but said there were no safety concerns during visits and that it was clear the child and father cared for each other. The child’s maternal grandmother, her current foster mother, testified that the father’s visitation was reduced from three times per week to 2 days per week and that the father was not helpful with her potty training the child.  The grandmother was concerned with the lack of supervision and attention she perceived from the child returning in dirty clothes and with food or gum in her hair.  The family permanency specialist testified that the father was unsuccessfully discharged from family support, individual therapy, and urinalysis testing and had not completed a chemical dependency evaluation.  She also attested that he typically participated in only one of two scheduled visits per week and testified that it would be in the child’s best interests to terminate the father’s parental rights.  A family advocate testified that when she supervised visits, the majority of the time the child interacted with her cousins and not the father and that the father fell asleep twice during visits and had to be woke up.  She also testified that the father loved the child and kissed and hugged her often.  A licensed mental health practitioner testified that the father was respectful and cooperative during parent child interaction therapy but that he was not optimistic that the father would make improvements since the father resisted the techniques and did not think they were necessary.  Three coverage workers who supervised visits testified that there were no safety concerns, that the home was appropriate, and that the child and father were affectionate and interacted appropriately.  Another visitation worker testified that on more than one occasion a visit was canceled because the child did not want to go despite being encouraged to go by her foster mother.  Finally, the guardian ad litem also expressed concern for the length of time spent in out-of- home placement, the inconsistency of visits, and the child’s resistance to attending some visits.  In May 2015, the juvenile court terminated the father’s parental rights and found termination was in the child’s best interests.  The father appealed and alleged that the juvenile court erred in finding that the State proved the requisite statutory grounds for termination under § 43-292(2) by clear and convincing evidence and in finding that termination of his parental rights was is in the child’s best interests. The Court of Appeals first concluded that the child had been in out-of-home placement for 15 or more of the last 22 months under § 43-292(7) and thus did not address the other alleged statutory grounds, but and instead analyzed whether termination of the father’s rights was in the child’s best interests.  The Court of Appeals concluded that the case was a “close call,” but that the father’s allegations had merit.  The Court of Appeals recognized that the father had made improvement and still had work to do before reunification, but that perfection of a parent was not required when decided whether termination of parental rights is appropriate. 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 – Indefinitely postponed on April 20, 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 – Indefinitely postponed on April 20, 2016

 

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

  • Last action – Approved by Governor on April 6, 2016

 

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

  • Last action – Indefinitely postponed on April 20, 2016

 

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

  • Last action – Indefinitely postponed on April 20, 2016

 

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

  • Last action – Indefinitely postponed on April 20, 2016

 

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

  • Watermeier priority bill
  • Last action – Approved by Governor on April 13, 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 – Indefinitely postponed on April 20, 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 – Indefinitely postponed on April 20, 2016

 

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

  • Pansing Brooks priority bill
  • Last action – Approved by Governor on April 13, 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 – Approved by Governor on April 18, 2016

 

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

  • Last action – Indefinitely postponed on April 20, 2016

 

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

  • Judiciary priority bill
  • Last action – Approved by Governor on April 7, 2016

 

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

  • Last action – Indefinitely postponed on April 20, 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 – Indefinitely postponed on April 20, 2016

 

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

  • Last action – Approved by Governor on April 7, 2016

 

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

  • Last action – Indefinitely postponed on April 20, 2016

 

INTERIM STUDIES

LR 513 (Sen. Howard) – Interim study to examine workforce issues within the child welfare and juvenile justice systems.

  • Last action – Referred to Health and Human Services Committee

 

LR 514 (Sen. Bolz) – Interim study to examine the availability of transition services for youth who will leave or have left the juvenile justice system while in an out-of-home placement.

  • Last action – Referred to Health and Human Services Committee

 

LR 523 (Sen. Howard) – Interim study to examine Nebraska law regarding the protection of children who have reached eighteen years of age but have not yet reached the age of majority.

  • Last action – Referred to Health and Human Services Committee

 

LR 529 (Sen. Howard) – Interim study to examine the ongoing implementation of the federal Preventing Sex Trafficking and Strengthening Families Act of 2014 and related state law and policy.

  • Last action – Referred to Health and Human Services Committee

 

LR 544 (Sen. Crawford) – Interim study to examine the alternative response demonstration projects created in LB 853, 2014.

  • Last action – Referred to Health and Human Services Committee

 

LR 545 (Sen. Campbell) – Interim study to examine medicaid and the Children’s Health Insurance Program, with an emphasis on children that are eligible but unenrolled in these programs.

  • Last action – Referred to Health and Human Services Committee

 

LR 551 (Sen. Krist) – Interim study to explore and assess the use of congregate care in Nebraska for youth in the child welfare and juvenile justice systems.

 

LR 561 (Sen. Krist) – Interim study to examine the effectiveness, economic stability, and long-term viability of the Youth Rehabilitation and Treatment Center in Kearney and the Youth Rehabilitation and Treatment Center in Geneva.

  • Last action – Referred to Judiciary Committee

 

LR 576 (Sen. Pansing Brooks) – Interim study to examine children’s access to legal counsel in juvenile proceedings across the state of Nebraska.

  • Last action – Referred to Judiciary Committee

 

Click here to see a chart of the introduced child welfare and juvenile justice interim studies.

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