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.

TIME LIMITS ON THE ASSESSMENT

The assessment must be completed within 30 days from the date that the report of child abuse or neglect was received by the screener. OAR 413-015-0475(2). The worker’s supervisor can approve a one time extension of 30 days.  Any other extensions may be approved by the program manager if additional information needed for the assessment is out of the reasonable control of the worker.  OAR 413-015-0480.

Because most parents lack the resources to consult with an attorney during this time, abuses of the strict time requirements happen.  During this time period there can be significant interference with a parent’s right to parent his or her child by DHS.  Protective action plans changing the child’s residence or limiting contact with one or more siblings or adults, including parents, can be forced upon the parents which interfere with a parent’s fundamental right to parent their child.  In the meantime, the agency is either providing no services to the family or they are asking for invasive services such as psychological evaluations or psychosexual evaluations.  If a parent refuses, they are accused of being hostile and/or uncooperative and are threatened with removal and court involvement.

If an attorney has the benefit of becoming involved prior a case being filed, the attorney can control the assessment process and remind DHS of the agency’s obligations and the rights of the parents. If the agency is not complying with the statutes or OAR’s, it is essential that the attorney send a letter to the caseworker, supervisor and program manager alerting them to the concerns and what the family intends to do if DHS does not come into compliance. A sample letter can be found here.

When the family finally gets to court, the parents, unwittingly, have developed the case against them through their interactions with DHS during the assessment period. However, there are still opportunities to attack DHS at this point.  Prior to a removal, DHS must exercise reasonable efforts to prevent the removal.  If DHS has failed to provide any services during an assessment process that was of any length prior to removal and there were services such as parenting classes or counseling that would have prevented the removal make sure to put on evidence regarding that as well as raise that argument.  In addition, if the agency has been assessing the family for some time without a removal and they come to court requesting a removal, ask the court why now?  Is it because the parents are just wanting to ask for advice from an attorney or the agency feels that the parent became uncooperative? If that is the case, they and their children are being punished for wanting to exercise a constitutional right.  If there was no immediate danger to the children in the months prior to the filing of the petition and nothing significantly changed the circumstances of the children prior to filing, introduce the evidence and make the argument against removal. Even though the court may find that DHS did not provide reasonable efforts to eliminate the need for removal, the court can still remove the child if there is an immediate threat of harm to the safety and well-being of the child. A finding of no reasonable efforts to eliminate the need for removal has the same consequences for the agency and the family as a finding of no reasonable efforts later on in the case. 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.

As attorney’s we must continue to hold DHS accountable and alert the court at every opportunity to when the agency fails to follow the agency’s own rules. Initially, the court and DHS may be resistant, but given that what happens at the beginning of the case sets the stage for everything that comes after, it is essential that the parents be put in the best position as possible right off the bat.

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