Foster Care Reform Update – May 2016

IN THIS ISSUE

  • Policy Spotlight: Foster Care Hackathon
  • Court Opinions: In re Interest of Sebastian D. & Lillian-Jo D., In re Interest of Abbie L.
  • Legislative Actions: 2016 Child Welfare Legislative Bills and Interim Studies
  • Announcements: Free CLE Webinar, Volunteers needed: Camp Catch-Up, Appleseed Blog

POLICY SPOTLIGHT

Foster Care Hackathon

May is National Foster Care Month, a time to acknowledge the children and youth who have been involved in foster care systems across the United States, and work to improve the child welfare system. In recognition of National Foster Care Month, the White House, the Federal Department of Health and Human Services, and Think of Us hosted a two-day long “Hackathon” to address issues in the child welfare system through the use of modern technology. The event brought together child welfare leaders, attorneys, foster families, foster care alumni, and leaders from the technology sector to improve outcomes for youth in foster care. According to the fact sheet released by the White House, the Hackathon addressed challenges such as:

  • Actively integrating more innovative technology into child welfare agencies;
  • Preventing homelessness for youth who have aged out of care;
  • Making essential documents readily available to foster youth;
  • Helping mothers dealing with substance abuse;
  • Getting more families to sign up to be foster homes;
  • Empowering foster youth with decision making abilities;
  • Creating frameworks to protect child welfare information in the digital age; and
  • Preventing unplanned pregnancy among foster youth.

Last week, the U.S. Department of Education released a Foster Care Transition Toolkit in recognition of the importance of increasing the use of technology in improving outcomes for youth in the foster care system. The toolkit includes strategies to assist youth access employment and higher education as they transition into adulthood and also identifies social, emotional, educational, and resource barriers that youth may face.

COURT OPINIONS

In re Interest of Sebastian D. & Lillian-Jo D., No. A-15-772 (not designated for permanent publication)
Decided July 12, 2013

In a memorandum opinion, the Nebraska Court of Appeals affirmed an order of the juvenile court which adjudicated two children within the meaning of Neb. Rev. Stat. § 43-247(3)(a). In this case, the State filed a petition to adjudicate two siblings pursuant to § 43-247(3)(a) and alleged that the younger child was found to have non-accidental subdural hematomas and retinal hemorrhages while in the father’s care. The State simultaneously filed a motion seeking an ex parte order placing both children in the custody of the Department of Health and Human Services (DHHS) which was granted and resulted in the children being placed with their maternal uncle. Subsequently, the State filed an amended petition alleging the children were within the meaning of § 43-292(2), (8), and (9), as to father, and a consolidated trial was held on both adjudication and termination of the father’s parental rights. During the trial there was a significant amount of written evidence submitted and testimony provided from the parents, the child’s grandparents, the maternal aunt and uncle, the investigating police officer, family support workers, caseworkers, the younger child’s treating doctors, and several medical experts generating “over 1,200 pages of testimony and five volumes of exhibits” for the appellate record. The evidence showed that the father was the primary caretaker of the younger child during the events in question, the child became unresponsive after seizure-like symptoms on two separate occasions, the father sought medical treatment for the child, the treating physicians did not initially determine that the child had subdural hematomas and instead told the father that the child was healthy, the child’s pediatrician noticed irregularities with the child’s head size during his 4-month well-child checkup, the child’s resulting MRI indicated that the child had subdural hematomas, and there was conflicting testimony about the severity and cause of the hematomas. The juvenile court concluded that the children were within the meaning of § 43-247(3)(a), but the State had failed to show that the child was within the meaning of § 43-292. The father appealed and alleged that the juvenile court erred in giving undue weight to the State’s expert witnesses and in adjudicating the children within the meaning of § 43-247(3)(a). The Court of Appeals concluded that the juvenile court did not err in giving weight to the State’s experts because the juvenile court had an opportunity to observe the testimony at trial and State’s expert opinions, which were not based on a personal examination of the child, focused on the explanation for the subdural hematomas and not the actual examination of the child. The Court of Appeals then determined that the juvenile court did not err in adjudicating the children because the State had shown by a preponderance of the evidence that the father had sole control over the child when the alleged abuse occurred, the child suffered injuries that normally would not occur in the absence of abuse or neglect, and that the older sibling was also at risk for harm because of the father’s physical abuse of the younger child. Read the full opinion.

In re Interest of Abbie L., No. A-15-996 (not designated for permanent publication)
Decided April 26, 2016

The Nebraska Court of Appeals reversed and vacated an order of the juvenile court which removed a child from her parents’ home in violation of the Nebraska Indian Child Welfare Act (NICWA). The Court of Appeals concluded that the juvenile court erred in finding that serious emotional damage would result if the child was not removed from her family home absent qualified expert witness testimony and in finding that active efforts had been made to prevent the breakup of the Indian family. In this case the State filed a petition alleging that the child was within the meaning of § 43-247(3)(a) and filed affidavit in support of the petition stating that “ICWA does apply – Crow Indian tribe.” The State’s initial petition did not plead that NICWA applied to the case and subsequently the State filed an amended petition alleging that NICWA applied in the case, the State had made active efforts to “prevent the break-up of the Indian family,” and that continued custody of the parents was “likely to result in serious emotional or physical damage to the child.” On October 13, 2015 the juvenile court held the protective custody proceeding and the State moved to continue the hearing so that its “ICWA specialist” could testify in the proceeding. The juvenile court overruled the motion and the State presented testimony of the initial assessment worker that at the time of the child’s birth the mother had tested positive for amphetamines and THC, the mother had bruising on her ribs due to a domestic situation, the father did not currently have a job or place to live, that she believed returning the child to the father’s care would not be safe but the child would not be seriously harmed, and that her efforts did not go beyond reasonable efforts. The juvenile court found the protections of NICWA did not apply, that active efforts had been made to prevent the need for removal, that continued custody of the child was likely to result in serious emotional or physical damage to the child, and ordered that the child remain in the custody of DHHS. The father appealed alleging that the juvenile court erred in finding that NICWA applied and in finding that the child could be detained under NICWA “when the State’s only witness, who was not a qualified expert witness, conceded that active efforts had not been provided and the child was not at a risk of imminent physical or emotional harm.” The State attempted to cross-appeal the juvenile court’s denial of the motion to continue the proceedings, but the State did not correctly denote their brief as a cross-appeal as required by Neb. Ct. R. App. P. § 2-109(D)(4) and the Court of Appeals did not consider the State’s arguments. The Court of Appeals first concluded that the NICWA was applicable to the proceedings because there was evidence that the child was an Indian child and the Bureau of Indian Affairs (BIA) Guidelines specifically provide that the NICWA should apply,”if there is any reason to believe the child is an Indian child.” The Court of Appeals then determined that the worker’s actions of meeting with the parents, gathering documents from the hospital staff, and contacting the child’s grandparents did not rise to the level of active efforts under § 43-1505(5). Furthermore, the Court of Appeals concluded that the State’s witness was not a qualified expert witness under § 43-1503(15) because she had a bachelor’s degree in human services, had been an initial assessment worker for “over a year,” had no knowledge of the Indian tribe’s culture or customs, and was not a “professional person having substantial education in the area of his or her speciality.” Finally, the Court of Appeals vacated the juvenile court’s order, placing the child into foster care, because the State had failed to meet its burden of proof under § 43-1505(5). Read the full opinion.

LEGISLATIVE ACTIONS

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.

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.

  • Last action – Referred to Health and Human Services Committee

 

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.

ANNOUNCEMENTS

Free CLE Webinar

Please join us on July 6 from 12:00 – 1:00PM (CT) for a webinar discussion on “Foster Care and the Challenges for LGBT Nebraskans.” Guest presenter, Amy Miller of the ACLU of Nebraska will discuss current litigation and legislation relating to foster care and the issues facing lesbian, gay, bisexual and transgender (LGBT) individuals. We will discuss the ACLU case seeking to allow same-sex couples to serve as foster parents, Stewart and Stewart v. Ricketts. This webinar will also cover Legislative Bill 975, which would have allowed child-placing agencies to exclude foster parents that do not align with their religious beliefs. This webinar will count for 1 CLE credit, which will be provided to you at no cost! You can register for the webinar here.

Volunteers Needed – Nebraska Children and Families Foundation’s Camp Catch-Up

Camp Catch-Up is a free summer program for siblings separated due to different foster, adoptive or guardianship placements to spend time together. Adult volunteers are needed for the camps running from June 16-19 in Halsey and July 7-10 in Gretna. Find an application for youth between the ages of 8 and 19 at campcatchup.org or contact Alana Pearson at apearson@nebraskachildren.org to volunteer. The deadline for siblings to register has been extended.

Appleseed Blog

Appleseed maintains a blog 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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