Attacking Reasonable Efforts – Assessment and Disposition

Posted on | April 28, 2014 | No Comments | megbishop

Every DHS case begins with notification to the agency by an individual that is concerned about the safety of a child.  If the case is not closed at screening, then the assessment process begins.  The assessment is started before any party steps into court, so it is important to determine if the agency has made reasonable efforts to prevent the removal by looking at the agency’s compliance with the assessment process.

SAFETY THREATS AND DISPOSITION

During the assessment, the worker must determine if a safety threat exists. To determine this, the caseworker should speak to the family, to the children (separate from the alleged abuser) in a manner consistent with the Oregon Interview Guidelines, and interview and/or obtain records from collateral contacts such as teachers or doctors.

After the investigation is complete, the worker must make a dispositional finding of either, “unfounded”, “unable to determine” or “founded”. Pursuant to OAR 413-015-1000, “founded” means there is reasonable cause to believe that child abuse or neglect occurred; “unfounded,” means no evidence of child abuse or neglect was identified or disclosed; “unable to determine, means there are some indications of child abuse or neglect, but there is insufficient data to conclude that there is reasonable cause to believe that child abuse or neglect occurred. To make a “founded” determination the “worker must determine if there is reasonable cause to believe that child abuse or neglect occurred and explain the basis for the determination.” Oregon Child Welfare Procedural Manual, Chapter II, Section 10.
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New Cases – TPR, Timeliness, Jurisdiction

Posted on | October 3, 2012 | No Comments | megbishop

Dept. of Human Services v. T.M.M. – A long history of DHS involvement, continued opioid abuse that caused serious harm to the children, a best case scenario of being able to parent in seven months and children who have significant behavioral problems warrants termination of parental rights.

Dept. of Human Services v. W.S.C. – The court cannot make a remedy for untimeliness in filing an appeal when the statute does not allow for it.  In addition, ORS 419B.200 comports with due process requirements of fundamental fairness.

Dept. of Human Services v. D.M. – Where there is no longer a current threat of harm based on the allegations in the jurisdictional judgment, it follows that jurisdiction must be dismissed.

Attacking Reasonable Efforts – Visitation

Posted on | September 30, 2012 | No Comments | megbishop

As an attorney for either a parent or child it is important to evaluate a case to determine if DHS is making reasonable efforts to reunify the family. The importance of a no reasonable efforts finding has huge, positive, consequences for our clients.  First, it impacts the Title IV-E reimbursement funding for foster care which leads to financial issues for the agency.  Second, the caseworker is required to report to higher ups, including central office, as to the reasons for the finding.  Third, it alerts to the court to poor casework and forces the court to take more control over the case.  In 2009, The Oregon Child Advocacy Project at the University of Oregon published Reasonable Efforts to Reunify in Dependency Cases. At every stage of the proceeding in a dependency case, the court must determine if DHS has made reasonable efforts to effectuate the plan. Though the reasonable efforts standard is not defined in the Oregon statutes or administrative code, the standard can be gleaned from appellate cases, the administrative rules and DHS’ own Child Welfare Procedure Manual. One of the vulnerable areas for the argument regarding lack of reasonable efforts is in DHS’ handling of visitation.

GENERAL VISITATION POLICY

As practitioners we should be putting on more evidence at disposition. This could include writing a court letter from the client’s perspective if appropriate, introducing the article by the Oregon Child Advocacy Project as an exhibit in a disposition, having contested disposition hearings and calling the caseworker to testify about DHS efforts. Having a pre-prepared exhibit that contains all of the OAR’s and Child Welfare Procedure Manual sections that are relevant to DHS’ obligations regarding visitation that could be regularly introduce is helpful and can also be used as a guide in questioning of the caseworker. This is all permissible evidence under ORS 419B.325 as it is related to the disposition of the case. ORS 419B.340.

If asked, the caseworkers will testify that they are familiar with the OAR’s, that the OAR’s are the “law” of DHS and they are required to follow them, that they are familiar with the Child Welfare Procedural Manual, that they are required to follow the manual and that the OAR’s and the manual guide the caseworker as to what their obligation is under reasonable efforts. The Procedure Manual “focuses on best practices in working with families, providers, and colleagues to attain positive outcomes for Oregon children and their families.” The purpose of the manual is to “elevate the standard and improve consistency in practice of child welfare delivery in Oregon.” Child Welfare Procedure Manual, Ch. I, Sec. 1.

OAR 413-010-0180(11) states that “Each child in the legal custody of the Department of Human Services has the [right] to visit and communicate with a parent or legal guardian, siblings, members of his or her family, and other significant people in the child’s life within reasonable guidelines as set by the case plan, the visitation plan and the court. OAR 413-070-0800 states that it is DHS’ responsibility to arrange frequent contact with a child and his or her family as it is in the child’s best interest, intended to reduce trauma as well as assure the safety and well-being of the child. “When [DHS] resources alone cannot meet the family contact and visitation needs of the child… the caseworker must solicit help from family and community resources.” OAR 413-070-0830(3).

The purpose of visitation is to maintain family contact and it is a service to children. “Visitation preserves a child’s attachment to his or her parents, siblings and other family members, and can lessen both the child’s and the parents’ anxiety about the child being placed in substitute care… One of the best predictors of a successful reunification is the frequency and quality of visits between a child and his or her parents.” Visitation is face-to-face contact which can be supplemented by phone calls, letters, e-mails, pictures, etc. Child Welfare Procedure Manual, Ch. IV, Sec. 26.

Further, the Procedure Manual provides caseworkers with the “Principles of Good Visitation Practice,” which indicates that the frequency of contact is far more important than the length of the contact, especially with younger children; that the family and other caregivers should be involved in developing the visitation plan to ensure that all interested parties are heard and that they all understand; and, that visitation should be held in the most natural setting as possible.

PARENTS

A caseworker is required to develop a temporary visitation plan with the parent at the time of the first hearing or at the removal – whichever comes first.  The plan must be given to all of the individuals participating in the plan.  OAR 413-070-0860(1).  Despite being a requirement, you will be hard-pressed to find a caseworker that actually does this.

After 30 days of the child entering into substitute care, the caseworker, along with the parents, must develop and ongoing safety plan which must be reviewed every 90 days. OAR 413-070-0860(2).

Parents are given priority in visiting their child when the plan is reunification. But, that does not alleviate the requirement that the caseworker consider visitation with the child and other family members. OAR 413-070-0855. The contact should be as frequent as possible, but no less than once a week. Child Welfare Procedure Manual, Ch. II, Sec. 18.

RELATIVES

DHS has an affirmative obligation to include relatives in case planning.  OAR 413-010-0320.  This includes hearing from grandparents if they assert their rights under ORS 419B.0875, receiving information from interested relatives, notifying relatives of the removal within 30 days of the removal, and may include them in Family Decision meetings. “Maintaining a child’s connections with significant people in his or her life is important to the child’s well-being.” Child Welfare Procedure Manual, Ch. IV, Sec. 26, page 7.

A relative has a right to visit and/or communicate with a child in the custody of DHS if it is part of the visitation plan, an order of the court, or it is a part of the opportunities for ongoing connection and support and approved by the caseworker.  OAR 413-010-0330.

DHS is required to have contact with relatives within 30 days of removal as outlined in OAR 413-070-0072.  As part of this rule, DHS must make return contact with a relative as soon “as reasonably possible but no later within 15 business days.”

Children have a right to ongoing connection and support from relatives, even when a relative is not a placement resource as long as the relative can “meet the safety, permanency, and well-being needs of the child” and provide appropriate ongoing support.  The caseworker must provide ongoing opportunities for connection and support if a relative meets the above criteria. OAR 413-070-0087.

CONCLUSION

The fact of the matter is that one hour a week at a DHS office, without clear articulable reasons by a caseworker, is not satisfactory under the rules nor under the reasonable efforts finding. An excuse of lack of funding or lack of resources is no where to be found as a justification for limiting visitation. Rather, the rules and Procedure Manual make it clear that the frequency of visitation is a consideration that must be made on a case-by-case basis, which should involve a plethora of family and community input. When asking for your no reasonable efforts finding based on failure to provide appropriate visitation, you should give the court the power to implement a new plan. Under ORS 419B.337(3), the court can order a specific visitation plan and DHS is required to follow such a plan. As one of your exhibits and/or argument give the court your plan – give the dates, name the safety service providers, tell them where the visits will happen, and most importantly tell the court why this plan is the least restrictive plan that is also in the child’s best interest.

New Cases – Sex Offenders and TPR

Posted on | April 19, 2012 | No Comments | megbishop

Dept. of Human Services v. B.B. – A father who may have had a really bad history of child abuse and sex offenses against children and has not completed sex offender treatment is not a current threat of harm to his children if he hasn’t offended against them or any other children in 16 years. And because father is not a threat, it follows that mother did not expose the children or fail to protect them from an unsafe individual.

Dept. of Human Services v. B.L.P. – The court, declining to recite the facts, affirmed the trial court’s finding that mother’s rights should be terminated due to unfitness.

2012 Case Summaries

Posted on | March 16, 2012 | No Comments | megbishop

Dept. of Human Services v. A.J.M. – Another judge failed to make the 419B.476 findings.
Dept of Human Services v. J.B.M. – There is a process to establish paternity, and unless followed, a man is not a legal father and therefore cannot be defaulted on a TPR petition and DHS cannot look to his family for placement.
Dept. of Human Services v. J.H. – The state failed to prove that the allegation that father “has not presented himself as a parenting resource and needs the assistance of [DHS] to establish a meaningful relationship with the child” was sufficient for jurisdiction.
Dept. of Human Services v. N.T. – When changing a plan from reunification to something else, the court cannot rely on facts that are unreasonably extrinsic from the allegations contained in the jurisdictional judgement.
Dept. of Human Services v. O.W. – Another judge failed to make the 419B.476 findings.
State ex rel Juv. Dept. v. S.J.P. – For a compensatory fine to be ordered, the state must prove that there was criminal activity, that there were economic damages and finally, that there is a causal relationship between the two. The cost of travel to trial is not an economic damage.

2011 Statute Updates

Posted on | March 9, 2012 | No Comments | megbishop

Below are links to the new language of the juvenile statutes that were amended in 2011. There are a few new statutes that related to expanded child abuse reporting requirements of colleges and universities. Also, there is a new basis for termination of parental rights – the rights of a father can be terminated if the child at issue was born of a rape. Also of note, 419B.100 was amended to remove the language related to spiritual healing and there appears to be an error – subsection 6 (jurisdiction of ICWA cases) was changed to subsection 5, but the exclusion language in subsection 1 still refers to subsection 6. The legislature also created a CASA taskforce to analyze the CASA program. All the changes are below along with the previous version of the statute.

419A.170 Appointment; duties; immunity; access to information; CASA Fund; rules.
Court Appointed Special Advocate Task Force. *New*
419A.250 Authority; segregation of records; access; when records may be kept with those of adults; destruction of records; missing children.
419A.305 Notice to school administrators concerning students subject to juvenile court petitions.
419B.005 Definitions.
419B.016 Offense of false report of child abuse. *NEW*
419B.021 Degree requirements for persons conducting investigation or making determination regarding child. *NEW*
419B.100 Jurisdiction; bases; Indian children.
419B.220 Appointment of surrogate.
419B.500 Termination of parental rights generally.
419B.510 Termination upon finding child conceived as result of rape. *NEW*
419B.529 Adoption after permanent commitment or surrender; procedure; certain fees prohibited.
419B.555 Hearing; notice to parent; duty to advise minor of liabilities of emancipated person; filing fee.
419B.818 Form of summons under ORS 419B.815.
419B.845 Restraining order when child abuse alleged.
419B.846 Service of restraining order.
419B.902 Service of subpoena.
419C.130 Youth or youth offender may not be detained where adults are detained; exceptions.
419C.220 Appointment of surrogate.
419C.446 Probation; requirements.
419C.459 Fines.
419C.470 Opportunities to fulfill obligations imposed by court.
419C.524 Notice and filing report prerequisite to defense; timing.
419C.529 Finding of serious mental condition; jurisdiction of Psychiatric Security Review Board; conditional release or commitment.
Plan for underserved regions

UPDATE: Should Juveniles be sentenced to life without parole?

Posted on | February 24, 2012 | No Comments | megbishop

Oral arguments in Miller v. Alabama and Jackson v. Hobbs are set for March 20, 2012.

Previously: Should juveniles be sentenced to life without parole?

LA Dependency Courts Now Open to Media

Posted on | February 24, 2012 | No Comments | megbishop

Earlier this month, Judge Michael Nash issued a blanketorder allowing the media access to all juvenile court proceedings in Los Angeles. This has caused quite a bit of controversy in the county. According to one reporter, he noted to On the Media, an attorney for children referred to her clients by numbers rather than by names to preserve confidentiality until a judge chastised her. Here is the first report from inside the newly open dependency courtrooms.

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Useful Tools for Juvenile Practice

Posted on | January 4, 2012 | No Comments | megbishop

I am leaving my firm on January 10, 2012 to start my own practice. As I have been preparing to train my replacement, I have had an opportunity to reflect on how I started in this area and think about the things I wished I had when I was first hired in March 2009.

In law school, I took a juvenile law course, but it really did not provide me with the practical understanding I required to be able to advocate for my clients effectively. Looking back, I taught myself how to be a juvenile lawyer – I had to read the cases, the guides, talked to more experienced attorneys to even start to begin how to understand how all the different pieces fit together. In prepping for my replacement, I have gone back to those more experienced attorneys for advice on what knowledge and training I should give her in the short time I have with her. The response is to give general advice, but she really is just going to have to practice it on a day-to-day basis to get “it.” Which, is true, frustrating, but true.

I have been also told that upon my departure, I need to pass on all my motions and other legal writings to me peers. They are forthcoming, I promise! Read more

Prescription meds for Foster Kids

Posted on | December 8, 2011 | No Comments | megbishop

On December 1, 2011 the GAO released a report of an investigation they did into 6 states – Florida, Maryland, Massachusetts, Michigan, Oregon, and Texas – on the rates of psychotropic medication prescribed to foster kids in 2008 and state oversight of psychotropic prescriptions for foster kids through October 2011. Overall, the news is not good. The investigation concluded that children in foster care were more likely to be prescribed psychotropic medication over children not in foster care.  Read more

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