Foster Care Reform Update – September 29, 2016

IN THIS ISSUE

  • Policy Spotlight: OIG 2015-2016 Annual Report Released
  • Court Opinions: In re Interest of Cristalyla. et al., In re Interest of Julia D., In re Interest of Jaina W. et al.
  • Legislative Actions: Federal Legislative Update, Nebraska Interim Studies
  • Announcements: CLE Webinar, Appleseed Blog

POLICY SPOTLIGHT

OIG 2015-2016 Annual Report Released

The Office of Inspector General of Nebraska Child Welfare (OIG) released their 2015-2016 annual report this month, with recommendations regarding Nebraska’s child welfare and juvenile justice systems. The OIG “provides accountability for Nebraska’s child welfare and juvenile justice systems through independent investigations, identification of systemic issues, and recommendations for improvement.” This report includes 33 recommendations to the Department of Health and Human Services and to Juvenile Probation. In the last year, the OIG received 577 intakes, a 40 percent increase from the previous year and 39.5% were regarding “critical incidents.”

Most concerning of the issues raised, were the 22 cases investigated in the last year by the OIG that resulted in death or serious injury of children involved in the child welfare and juvenile justice systems. The report includes details on deaths investigated beginning in May of 2013, including cases of serious injury, deaths related to severe abuse and neglect, sudden unexpected infant deaths and the suicides of older state wards.

Much of the report focused on recommendations concerning the burden on child welfare workers due to continued high caseloads. While minimum caseload standards were set by the Nebraska Legislature four years ago, through LB 961, DHHS remains unable to meet these requirements as well the staffing requirements found in the Prison Rape Elimination Act at the YRTC – Kearney. The OIG continues to recommend reducing caseloads as way to increase the safety of children and to deliver high quality services. The report stated, “Administrators, supervisors, and caseworkers told the OIG that cutting corners during Initial Assessment was a fairly standard practice, due to caseload and workload challenges.” This was echoed by staff across the state and across levels.

The OIG recommendations called for strengthening the workforce through additional training, plans to reduce caseworker turnover and strategies to lessen disruption for youth between caseworker transitions. Recommendations also focused on improvement and assessment of tools such as the Structured Decision Making (SDM) risk assessment instrument, policies and procedures, and data collection. The OIG called for better coordination between the various agencies serving children including the child welfare agencies, law enforcement, and medical professionals.

The full list of recommendations and updates on implementation progress can be found here in the 137 page report.

COURT OPINIONS

In re Interest of Cristalyla. et al., No. A-15-1170 through A-15-1172
Decided August 30, 2016 (not designated for permanent publication)

The Nebraska Court of Appeals affirmed an order of the juvenile court and concluded in a memorandum opinion that the juvenile court did not err in terminating the parental rights of the mother as to three of her children, and did not err in terminating the parental rights of the father as to the oldest child. In this case, the mother was arrested for shoplifting while her children were residing with their maternal grandmother. During this time, the Department of Health and Human Services (DHHS) received several reports that the children were not being properly supervised and, as a result, the children were removed from the grandmother’s care, placed in foster homes, and were eventually adjudicated as to both the mother and father. Subsequently, the State sought termination of the mother’s rights pursuant to Neb. Rev. Stat. § 43-292(2), (4), (6), and (7) and also sought to terminate the parental rights of the father of the oldest child pursuant to § 43-292(2), (3),  (6), and (7). The juvenile court eventually terminated the parental rights of the mother pursuant to § 43-292(2) and terminated the father’s rights pursuant to § 43-292(7) and both parents separately appealed. The Court of Appeals determined that the juvenile court had correctly found that the State had shown by clear and convincing evidence that the that mother’s three children were within the meaning of Neb. Rev. Stat. § 43-292(2) because the mother had consistently failed to provide the children with proper care, the mother had previously completed a voluntary case with DHHS and did not maintain her sobriety, she was repeatedly incarcerated, she consistently used drugs, and she lacked steady employment and housing. The Court of Appeals concluded that the juvenile court did not err in finding that the termination of the mother’s parental rights was in the best interests of the children because of her pattern of progression and regression with her case plan, her continued drug-use and criminal behavior, a psychological assessment indicating that she may not ever be capable of making long-term changes in her life due to her personality disorder, her lack of a bond with her children, and the need for permanency in the children’s lives. The Court of Appeals determined that termination was warranted as to the child’s father because she had been in an out-of-home placement for at least 15 of the most recent 22 months and as such it was only necessary to determine whether the termination of the father’s’ parental rights were in the best interests of the child. The father failed to include an assignment of error as to the juvenile court’s best interests determination, and as such the Court of Appeals did not consider the father’s arguments, “other than to briefly note that there was clear and convincing evidence to support the order of termination” because of the father’s minimal contact with the child, his repeated incarceration, and his inability to provide support or care for the child. Read the full opinion.

 

In re Interest of Julia D., No. A-16-030
Decided July 12, 2016 (not designated for permanent publication)

The Nebraska Court of Appeals affirmed the orders of the juvenile court which rejected the mother’s request for a placement change, changing the permanency objective from reunification to adoption, and ordering that no further reasonable efforts be provided to the mother.  In this case, the child was removed from her mother immediately after birth due to the hospital staff’s concerns about the mother’s mental health. The child was subsequently placed in the care of DHHS and the juvenile court found the child to be within the meaning of § 43-247(3)(a) through no fault of the mother because the mother was homeless, and was diagnosed with psychosis. The child’s caseworker identified the mother’s first cousin in the state of Washington as a potential relative placement for the child and applied for an Interstate Compact on the Placement of Children (ICPC) home study. The mother’s cousin was eventually approved under the ICPC, continued visitation with the child, and DHHS filed a notice of change of placement indicating the Department planned to place the child with her relatives. The Guardian Ad Litem (GAL) objected to the change of placement because the child had bonded with her current foster parents and was thriving, the mother’s cousin had a variety of health issues including fibromyalgia, anxiety, depression, and post-traumatic stress disorder, she had discontinued her mental health treatment, and her husband had a variety of health concerns including sleep apnea, diabetes, thrombosis, and a pulmonary embolism. The juvenile court received evidence from DHHS at the same hearing indicating the mother had consistently failed to engage in services, failed to attend a psychological evaluation, failed to participate in one medication management appointment, had not made progress towards addressing the issues identified in her case plan, and DHHS recommended no further reasonable efforts be provided to the mother. The juvenile court entered an order granting the GAL’s objection to the change of placement, striking the objective of reunification in favor of adoption, and ordering that no further reasonable efforts be provided to the mother. The mother appealed and alleged that the juvenile court erred in denying the change of placement because the Nebraska Juvenile Code prefers relative placements and erred in changing the permanency goal and ceasing reasonable efforts because she was not given a reasonable opportunity to comply with the rehabilitation plan. The Court of Appeals first analyzed the change of placement issue and noted that the Nebraska Juvenile Code clearly expresses a preference for placement with blood relatives under §§ 43-246(5) and 43-533. However, the Court of Appeals concluded that the juvenile court correctly exercised its discretion in denying the placement change because the juvenile code, “does not give relatives the right to placement of the child,” the child had no relationship with the mother’s cousin prior to the case, the cousin and her husband had several health concerns which could impact the care of the child, the child was thriving in her current foster placement, and the child had bonded with the foster parents. The Court of Appeals then determined that the juvenile court did not err in changing the permanency objective from reunification to adoption and ordering that no further reasonable efforts be provided to the mother because the mother had failed to address her mental health issues, had failed to consistently attend visitation, the mother continued to go missing, and the mother failed to engage in many of the services offered to her. Read the full opinion.

 

In re Interest of Jaina W. et al., No. A-16-117 through A-16-181
Decided August 30, 2016 (not designated for permanent publication)

The Nebraska Court of Appeals affirmed an order of the juvenile court and concluded in a memorandum opinion that the juvenile court did not err in terminating the parental rights of the mother as to her five children. The Court of Appeals concluded that the GAL had proven by clear and convincing evidence that the children were within the meaning of § 43-292(6) and that termination of the mother’s rights was in the children’s best interests. In this case, the children were taken into DHHS custody after they had been left with caregivers for an extended period of time with no contact with the mother. Subsequently the mother was arrested for possession of methamphetamine and the children were found to be within the meaning of § 43-247(3)(a). Over the course of the next nine months, the mother served her jail sentence, successfully completed inpatient drug treatment, transitioned to living in a “halfway house,” began supervised visitation with the children, left the halfway house without completing the program, was incarcerated again, was released from jail, failed to participate in drug testing, was arrested for shoplifting, was ticketed for marijuana possession, and was sentenced to a one-year sentence for violating the terms of her parole. The GAL filed a petition to terminate the mother’s parental rights pursuant to § 43-292(2), (4), and (6) and the juvenile court found clear and convincing evidence to terminate the mother’s rights, but did not specifically identify a statutory ground for termination in the court order. The mother appealed alleging that the juvenile court erred in terminating her rights because there was insufficient evidence presented to prove that one of the statutory grounds under § 43-292 were met and that termination was in the children’s best interests. The Court of Appeals concluded that the GAL had proved by clear and convincing evidence that the children were within the meaning of § 43-292(6) because the mother failed to abstain from using drugs, failed to submit to drug testing, did not complete the program at a halfway house after her release from jail, the mother committed several criminal violations during the pendency of the case, she failed to provide adequate housing, and she did not consistently participate in services offered to her. The Court of Appeals then determined that the termination of the mother’s rights was in the best interests of the children because the mother was an unfit parent due to her possession of drugs and criminal violations, her inability to parent the children due to these issues, her inability to make progress in her case plan or rehabilitate herself, and the children’s need for permanency and stability. Read the full opinion.

LEGISLATIVE ACTIONS

FEDERAL LEGISLATIVE UPDATE

In June, the U.S. House of Representatives quickly passed the bipartisan Family First Prevention Services Act. The FFA would make a number of changes to the federal funding of foster care to disincentivize unnecessary “non-family” placements for children in the foster care system and to increase the availability of funding to prevent families from entering the foster care system in the first place. Tell Nebraska’s U.S. Senators the Senate must pass the FFPSA without delay when senators return from summer recess.

NEBRASKA INTERIM STUDIES

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

  • Last action – Notice of hearing in Health and Human Services Committee for October 13, 2016

 

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 – Notice of hearing in Health and Human Services Committee for October 19, 2016

 

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 – Notice of hearing in Health and Human Services Committee for November 15, 2016

 

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 – Notice of hearing in Health and Human Services Committee for October 13, 2016

 

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.

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.

ANNOUNCEMENTS

CLE Webinar: The ACA and Women’s Health Care Coverage

This webinar on October 11, 2016 at 12:00PM CST, will provide an overview of the ways the Affordable Care Act (ACA) impacts health care coverage for women. The presentation will focus on how the ACA changes rate setting practices, the type of coverage that must be offered, and anti-discrimination protections. Registration for this free CLE webinar will be provided in next month’s Foster Care Reform Update.

Good Apple Awards

Join us on Thursday, October 13 at the Livestock Exchange Building as we honor people who stand up for justice for all Nebraskans, and celebrate Nebraska Appleseed’s 20th Anniversary year. There will be live music, an hors d’oeuvres dinner, and a short program. You can purchase tickets to the Good Apples Awards here.

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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