Foster Care Reform Update – The Foster Youth and Driving Act

In This Issue

  • Policy Spotlight: The Foster Youth and Driving Act
  • Court Opinions: In re Interest of Carmelo G., Jill B. and Travis B. v. State
  • Legislative Actions: 2017 Child Welfare Interim Studies

Policy Spotlight

Advocates and lawmakers across the nation have been working to reduce the barriers faced by youth in foster care when learning how to drive, obtain driver’s licenses, and purchase cars and automobile insurance. In the last session of the Nebraska Legislature, LB 226 was a bill introduced by Senator Anna Wishart to reduce these barriers. Congress has also taken up the issue with Rep. Danny K. Davis (D-IL) introducing the Foster Youth and Driving Act (H.R.2512) in May.

This legislation acknowledges that transportation is one of the largest barriers for youth in foster care as they transition into adulthood, often impeding on education and employment goals. Youth in care face additional roadblocks when obtaining their driver’s license due to permission requirements, completing driving practice hours and access to a car for practice, costs, and often the liability concerns of foster parents caring for them.

The Foster Youth and Driving Act builds upon the Preventing Sex Trafficking and Strengthening Families Act (P.L. 113-183) by:

  • Providing training for foster parents so they have the skills and knowledge to prepare foster youth of age to drive and obtain a driver’s license,
  • Requiring the foster youth’s case plan include a plan for assuring the child is prepared to drive including being provided practice driving hours and information on obtaining a driver’s license and car insurance,
  • Allowing states to use flexible Chafee Foster Care Independence Program funds to create driver’s license assistance programs for youth who were in care at age 16 and are currently between 21 and 26 years old, as well as enrolled in postsecondary education or employment training program,
  • Providing this assistance of up to $3,000 to help youth with vehicle insurance costs, driver’s education class costs, testing fees, practice lessons and hours as well as driver’s license fees.

For more information you can read the full text of the introduced legislation and a fact sheet from our partners at First Focus and the SPARC.

Court Opinions

In re Interest of Carmelo G., 296 Neb. 805
Filed June 2, 2017

The Nebraska Supreme Court vacated a temporary protective order of the juvenile court after concluding that a mother’s procedural due process rights were violated by unreasonable delay.

On January 5, 2016, the State filed a petition alleging that the child lacked parental care by reason of the fault or habits of the child’s parents. On the same day, the court filed an ex parte order granting the State’s motion for temporary custody of the child with DHHS. Although a protective custody hearing was scheduled for January 21, it was continued multiple times until it was concluded on August 2. On September 19, the court ordered that the child remain in the temporary custody of DHHS until further order of the court. The court also determined that exigent circumstances precluded the necessity of reasonable efforts, including the mother’s inability to comply with a safety plan that had previously been put in place. The child’s mother appealed, arguing that 1) she was denied due process by the unreasonable delay of more than eight months between the issuance of the ex parte custody order and that of the protective custody order continuing the child’s placement outside of the home, and 2) she was denied due process when the juvenile court determined that the child’s placement outside of the home was necessary based on her non-compliance with the safety plan, because the safety plan was invalid and coercive. The State and guardian ad litem for the child asserted that the eight-month delay was reasonable because the mother received notice, was allowed to visit her child, and because the delay was for the purpose of giving the mother meaningful opportunity to be heard.

The Supreme Court of Nebraska began its analysis by looking to the fundamental constitutional rights of parents, including their interest in the care, custody and control of their children, as perhaps the “oldest” of fundamental liberty interests. Such interests are afforded due process protection, including the parents’ right to a meaningful hearing without unreasonable delay after an ex parte temporary custody order. An ex parte order is permitted because it is meant to be short-term; while the State may take a juvenile into custody during a perceived emergency situation, a prompt detention hearing is required to protect against the risk of an erroneous deprivation of the parents’ interests. The Court disagreed with the argument from the State and guardian ad litem that the delay was reasonable, distinguishing the present case from In re Interest of R.G.. There, the Court concluded a mother’s due process rights were not violated after a fourteen-day delay between orders, as the parent was given an opportunity to be heard at the detention hearing and was allowed to visit her children in the interim. Nonetheless, the Court in R.G. cautioned that fourteen days was “on the brink of unreasonableness.” In contrast, the Nebraska Supreme Court in this matter concluded that the delay of eight months was too long of a duration, resulting in a violation of the mother’s due process rights.  Although the Court acknowledged that scheduling and evidence compilations can take time, it is the juvenile court’s responsibility to manage its own docket and provide for prompt detention hearings on ex parte protective custody orders. The fact that the parties did not contest the continuances did not impact the court’s analysis.

Because the Court determined that the mother’s first assignment of error was dispositive, it did not reach her second argument regarding the validness and coerciveness of the safety plan. The Nebraska Supreme Court vacated the temporary custody order, and remanded the case for further proceedings.

Read the full opinion here.

Jill B. and Travis B. v. State, 297 Neb. 57
Filed June 30, 2017

The Nebraska Supreme Court affirmed a district court judgment in favor of the Nebraska Department of Health and Human Services (DHHS) and the State of Nebraska based on a finding that the State is immune from liability under the State Tort Claims Act for claims arising from misrepresentation and deceit.

Two parents brought a negligence claim against the State under the State Tort Claims Act, Neb. Rev. Stat. §§ 81-8,209 to 81-8,235 after learning that their child had been sexually abused by a potential adoptee that was placed in their home by DHHS. The parents alleged that a caseworker with the State failed to warn or disclose that the potential adoptee had been sexually abused and had made inappropriate contact in the past, and that the State engaged in negligent supervision of the caseworker. The State asserted immunity and filed a motion for summary judgment, based on the contention that the caseworker’s actions fell under the intentional torts exception for which sovereign immunity is not waived pursuant to Neb. Rev. Stat. § 81-8,219(4). The district court overruled the motion for summary judgment after finding there was a material issue of fact as to whether the caseworker was negligent. Following a bench trial, the district court found that although the caseworker was aware of the potential adoptee’s history and did not reveal it, despite being asked by one of the parents, the state was immune from liability under the State Tort Claims Act because it “specifically excepts from its waiver of governmental immunity claims that are based on misrepresentation and deceit.”

The Nebraska Supreme Court began its analysis by determining that the law of the case doctrine did not preclude the district court from addressing the issue of immunity following the denial of the State’s motion for summary judgment, as the district court’s denial of the motion for summary judgment did not decide the issue of immunity and was not a final order. Additionally, the Court rejected the parents’ contention that the State failed to properly plead the misrepresentation exception as an affirmative defense, as the parents were properly given notice of the State’s intent to raise sovereign immunity as a defense and the issue was framed in the district court’s pretrial order.

Next, the Court examined the issue of whether the State is immune from liability based on the intentional torts exception to the State Tort Claims Act, Neb. Rev. Stat. § 81-8,219(4). The Court provided a history of Tort Claims Acts at both the state and federal level and explained that while the Legislature has waived the State’s sovereign immunity with respect to certain types of suits, that waiver does not include suits based on intentional torts committed by the State, such as misrepresentation or deceit. The Nebraska Supreme Court also reiterated that “because the State has given only conditional consent to be sued,” the State Tort Claims Act must be construed strictly. After examining federal and state case law and the Restatement (Second) of Torts, the Court determined that although the misrepresentation exception typically applies in the business transactions, it can also apply to claims based on personal injuries not involving pecuniary loss—a question of first impression in Nebraska. As such, the Court upheld the district court judgment barring the parents’ claims on the basis of sovereign immunity. Although the Court recognized that such a decision “adds insult to injury” from the parents’ perspective, the Court emphasized that it is within the province of the Legislature to determine whether the rationale underlying the misrepresentation exception to the State’s sovereign immunity is justified.

Read the full opinion here.

Interim Studies

LR 139 (Sen. Bolz) – Interim study to analyze the best use of the state’s child welfare resources in line with its goals

  • Last action – Referred to Appropriations Committee

 

LR 140 (Sen. Bolz) – Interim study to examine issues surrounding the Family Finding pilot project

  • Last action – Referred to Health and Human Services Committee

 

LR 145 (Sen. Howard) – Interim study to examine the importance of Title IV-E Funds and the federal adoption assistance program

  • Last action – Referred to Health and Human Services Committee

 

LR 153 (Sen. Pansing Brooks) – Interim study to examine the existence and practice of conversion therapy in Nebraska for minors

  • Last action – Referred to Judiciary Committee

 

LR 154 (Sen. Howard) – Interim study to examine Nebraska’s utilization of Temporary Assistance for Needy Families funds

  • Last action – Referred to Health and Human Services Committee

 

LR 166 (Sen. Morfeld) – Interim study to examine mental health education provided in Nebraska schools

  • Last action – Referred to Education Committee

 

LR 187 (Sen. Howard) – Interim study to determine the strengths and weaknesses of the five primary service areas of the Division of Children and Family Services of the Dep. of Health and Human Services

  • Last action – Referred to Health and Human Services Committee

 

LR 198 (Sen. Pansing Brooks) – Interim study to examine the impact of incarceration on children in Nebraska

  • Last action – Notice of hearing in Judiciary Committee on September 15, 2017

 

LR 216 (Sen. Pansing Brooks) – Interim study to examine the policies, practices, and laws that govern the safeguarding and sealing of juvenile records

  • Last action – Referred to Judiciary Committee

 

LR 236 (HHS Committee) – Interim study to examine the workload studies used by the Dept. of Health and Human Services to understand current staffing needs

  • Last action – Referred to Health and Human Services Committee

 

Click here to see a chart of child welfare interim studies tracked this session by Nebraska Appleseed.

Legislative Actions

Click here to see a chart on all child welfare and juvenile justice bills tracked in the previous session by Nebraska Appleseed and our friends at Voices for Children in Nebraska.

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