A Timely Path to Permanency Requires True System Reform

Nebraska State CapitolLB 1172 requires the County Attorney to file a petition to terminate parental rights when a child under the age of five is in an out-of-home placement for twelve months.  We thank Sen. Pirsch and the judiciary committee for their commitment to increase permanency for younger children in foster care, but believe that reducing case load size and increasing access to services is a more practical and equitable way to increase permanency for all children in foster care.

[DDET LB 1172 Testimony]

Senator Brad Ashford

Chair, Judiciary Committee
Room 1103, State Capitol
Lincoln, NE 68509

Chairman Ashford and members of the Judiciary Committee,

On behalf of the Nebraska Appleseed Center for Law in the Public Interest, I am here to testify in opposition to LB 1172.

We share the goal of finding permanency for children in foster care and understand the intent of this bill.  But we do not believe the approach of LB 1172 is the best manner in which to ensure permanency for younger children for several reasons.

First, in many cases reunification is not possible within a twelve-month time period because it may take longer than twelve months for a parent to rehabilitate himself or herself, especially cases in which the parents are suffering from mental illness or substance abuse.  As part of federal requirements, the Nebraska Department of Health and Human Services (DHHS) collects data on the number of children who successfully achieve reunification in less than twelve months.[i] The most recent data from the COMPASS system, the state’s online tracking of federal measures, shows that in December 2011, only 65.2% of children in the foster care system were able to achieve reunification within a twelve month time period.[ii] The COMPASS data also shows that in December 2011, 24.9% of children were able to achieve reunification after being in an out-of-home placement between twelve and twenty-four months.[iii] LB 1172 could prevent many of these children under the age of 5, who may otherwise be able to achieve reunification, from safely reunifying with their parents in the period after 12 months.  While several exceptions to the mandatory filing of termination of parental rights (TPR) petitions currently exist in the statute and would presumably apply to the changes in this bill, these exceptions appear to be discretionary.

Second, LB 1172 does not adequately account for the delays that often exist in the juvenile court system. It could unfairly penalize parents for events that may be out of their control and may deprive a child under this bill of the opportunity to be reunified with their parents. For example, in some juvenile cases it may take several months from the time of a child’s initial removal for the case to be adjudicated. A more effective way to remedy this would be to strategically increase juvenile court staff in districts with crowded court dockets and to strengthen efforts currently underway to expedite juvenile court cases.

The only way to truly improve permanency for children in the foster care system is to focus on improving the child welfare system as a whole. One way to achieve this would be to enforce reduced caseloads because it would allow caseworkers to devote more of their time and attention to an individual family. This would help ensure that families would be able to locate and access services more quickly. This also would allow for caseworkers to identify and work on potential problems within the family structure more quickly, thus improving a family’s chances of reunifying in a timely manner. Another critically needed solution to improving timeliness to permanency would be to improve access to rehabilitative services for both the child and family. As previously mentioned, many families that become involved with the child welfare system have mental health or substance abuse problems and many face waiting lists and other barriers in accessing appropriate services. Ensuring that families have timely access to appropriate services and treatment will likely lead to improved results for children and families.

Finally, Nebraska Appleseed recently reached out to our listserv of nearly 300 practicing juvenile court attorneys and asked them to share their feedback on LB 1172. The attorneys who responded to our request raised several concerns with LB 1172, including many of the issues that have already been enumerated. One additional issue that was raised was whether the bill potentially creates substantive due process and equal protection problems. Another issue raised was whether the bill is necessary because the County Attorney currently can file a petition to terminate parental rights when a child has been in an out-of-home placement for fifteen months and Nebraska’s existing statutory framework allows for the County Attorney to file for termination before the fifteen-month mark in necessary cases.

In conclusion, we strongly agree that ensuring a timely path to permanency is essential for younger children in the child welfare system. In fact, it is in the best interests of all youth in the child welfare system to have a timely path to permanency. We appreciate that it is often difficult to balance the needs and the rights of both children and parents in the system.[iv] However, we believe that LB 1172 does not effectuate the goal of timely permanency for younger children in the most practical manner and that addressing some of the underlying causes of delays is a more fair and effective way to expedite permanency.

Therefore, we thank the Committee for their commitment to increase permanency for younger children, but respectfully request that the Committee does not advance LB 1172.




Robert McEwen
Staff Attorney (Not yet admitted in Nebraska)
Child Welfare System Accountability Program


[i] The data is measured by DHHS pursuant to the following definition: For the reporting year, of all children discharged from foster care to reunification who had been in foster care for 8 days or longer, the percent that met either of the following criteria: (1) the child was reunified in less than 12 months from the date of the latest removal from the home, or (2) the child was placed in a trial home visit within 11 months of the date of the latest removal and the child’s last placement prior to discharge to reunification was the trial home visit.

[ii] http://dhhs.ne.gov/children_family_services/Compass/Reunification

[iii] Id.

[iv] Amanda C. v. Case, 275 Neb. 757, 749 N.W.2d 429 (Neb. 2008).[/DDET]
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