Psychological vs. Biological Family

Posted on | November 29, 2011 | No Comments | megbishop

The Oregonian reported today on a man who is the psychological father of three of his ex-girlfriend’s children. The mother relinquished her rights and, though he put himself forward as an adoptive resource, a cousin of the mother’s stepped forward and DHS designated the cousin as the adoptive placement. Now, due to recommendations of a psychological evaluator, he is not permitted to have contact with the children.

Oregon officials say man called ‘Daddy’ isn’t biological father, can’t see kids

UPDATE

DHS weighs in on the article: Letter to the Editor

Three new cases

Posted on | November 23, 2011 | No Comments | megbishop

State v. M.W.H. – When a youth consents to the search of his person, this is dispositive and the youth cannot contest the reasonableness of the search.

Dept. of Human Services v. N.S. II – The reasonableness of DHS’s efforts depends on the case and in this matter, their efforts were reasonable. A parent’s progress is not just gauged on completion of services, but focused on the safety and well-being of the child and in this matter, Mother’s progress was not sufficient. The court affirmed the permanency judgment changing the plan to guardianship.

Dept. of Human Services v. F.J.M. – The court failed to make the appropriate findings under 419B.476(5) required to change the plan. Reversed and remanded to make the proper findings.

Should juveniles be sentenced to life without parole?

Posted on | November 7, 2011 | No Comments | megbishop

That is the question that the Supreme Court will answer in reviewing two cases from Alabama and Arkansas. Today, the court granted cert on Miller v. Alabama and Jackson v. Hobbs.

Miller, at 14 years old, robbed and beat a neighbor to the point that he was incapacitated and set the neighbor’s trailer on fire. He was charged with capital murder, but sentenced to life without parole due to his minority.

Jackson was also 14 years old when he aided in a robbery where an older child shot a shop keeper. “Jackson himself did not commit the killing and was not shown to have had any intent or awareness that the attendant would be shot. The robbery “plan,” such as it was, was spur-of-the-moment, formed just before the robbery, while Jackson, his cousin, and another older teen were walking together through a housing project.” Under Arkansas law, he was sentenced to life without parole without any consideration to his age or any other mitigating circumstances.

This is an extension of a line of cases in which the court has reviewed punishment for minors. The first, in 2005, was Roper v. Simmons wherein the court ended the death penalty for minors as it violated the ban on “cruel and unusual punishment” contained in the Eight Amendment. In a 2010 case, Graham v. Florida, the court decided that life without parole sentences for minors convicted of non-homicide crimes was also a violation of the Eight Amendment. Oral arguments have not been scheduled.

Questions presented can be found here:
Miller
Jackson

Lower Court decisions can be found here:
Miller
Jackson

A more in depth analysis: New review on youths’ punishment – SCOTUSblog

Washington Agrees to Overhaul Foster Care System

Posted on | November 2, 2011 | No Comments | megbishop

Washington State, after years of negotiation and law suits, has come to an agreement to overhaul the way children are treated in foster care.

“The changes include safeguards protecting children from being shuffled from foster home to foster home, timely medical and mental-health screenings, and requirements that caseworkers visit every month. The settlement also requires that each caseworker oversee no more than 18 children.”

Memory and Eyewitness Testimony

Posted on | November 2, 2011 | No Comments | megbishop

OPB Think Out Loud was focused on memory and eyewitness testimony this morning. Spurred by the fact that both the Oregon Supreme Court and the Supreme Court of the United States is taking up the issue of eyewitness identification and the science behind memory, TOL spoke with Dr. Daniel Reisberg, Professor Carrie Leonetti, Detective Jim Lawrence, Josh Marquis, Clatsop County District Attorney, and Attorney Holli Houston about current research and the problems that arise through eyewitness testimony in criminal prosecutions. Leonetti is currently in Sarajevo on a Fullbright Scholarship and had some interesting comments about how Bosnia handles identifications differently from Herzegovina and the problem of balancing the two approaches.

I have been thinking about the fallacy of memory since watching a 3-part series on Nat Geo, Brain Games. I encourage you to watch all three parts because it shows, in actual time, what kinds of tricks our brains play on perception. One episode deals directly with eyewitness testimony and how malleable memory is. Which in turn leads me to New Jersey. Read more

New Case – G.E. extended to Change of Plans

Posted on | October 30, 2011 | No Comments | megbishop

The Court of Appeals determined that G.E. – a case that says once a parent ameliorates the jurisdictional issues the case must be dismissed – extends to changes of plan.  Basically, in order to a court to change a plan from return to parent, they must base their decision on a parent’s progress towards ameliorating the jurisdictional basis.  The key question is whether the parent was put on notice that other issues that have come up during the case needed to be ameliorated.  Also, in dicta, the court indicated that in a case based on an allegation of an unexplained injury at some point there must be an amendment to the petition to conform with DHS’s theory of the injury after further investigation.

Dept. of Human Services v. N.M.S.

Foster Kids Win Suit Against DHS

Posted on | October 29, 2011 | No Comments | megbishop

A law suit, filed in 2009 against Clackamas County DHS workers was resolved this week. The case alleged that a brother and sister were terribly abused in foster care, and despite numerous reports to the hotline as well as by the children, DHS workers did nothing until the sister was taken by Life Flight to the hospital for a skull fracture. The foster parents were convicted of criminal mistreatment of the children. And this week, DHS settled the case regarding the sister for $1.5million. A jury heard the brother’s case and awarded $2million to him. They also found that the agency violated his civil rights, which means that his attorney is able to seek attorney’s fees directly from DHS rather than having to take his fee from the brother’s settlement. According to the plaintiff’s attorney, DHS’s defense was that they did nothing wrong, but also there was no abuse. I would be curious to hear the agency’s perspective on this case.

New Cases – Jurisdiction Jurisdiction Judgments

Posted on | October 28, 2011 | No Comments | megbishop

Dept. of Human Services v. L.B. – Another reverse and remand because the trial court failed to make the appropriate findings required by 419B.476 to change the plan. This case adds a little nuance, though, as Mother had an opportunity to review the judgment before it was entered. The court found that the form that the trial court used was confusing and due to that, the court gave Mother a pass on the requirement of preserving the error.

It should be very clear at this point that the court will be giving parents a lot of leeway in challenges to deficiencies in the permanency judgments and both the court and DHS should be making sure everything is checked and the proper findings made. One thing I was wondering is what “check the box” form Yamhill County uses – more pointedly was this judgment one prior to model court forms developed by JCIP?

Dept. of Human Services v. G.E. – This was a reconsideration of G.E. II, which was decided in earlier this year. After reviewing the record, the court determined that there was no evidence that Mother had a current substance abuse problem. Based on that, the court revised the previous ruling and reversed and remanded for entry of dismissal.

Dept. of Human Services v. D.S.F. – Mother suffers from long-term substance abuse issues. Father ensured that the children were protected, that Mother never cared for them and that when Mother was not clean and sober she was not in the home. DHS filed a petition given the history and that the agency felt Father was not cooperative with the investigation. The court determined that DHS failed to prove that there was a serious risk of serious loss or physical injury as the children were well-rounded, showed no difficulties and there was no history of physical violence by Mother.

All in all, this has been a good month to be a parent attorney.

Native Americans in Foster Care

Posted on | October 25, 2011 | No Comments | megbishop

NPR just started airing the results of a year long investigation on how states, particularly South Dakota, comply with ICWA. The results are startling.

Native children are over-represented in the state’s foster care system and this is not a statistic for just South Dakota, but also across the nation. Oregon is ranked 18th in terms of disproportionality – but the statistics show that the level of Native children in foster care is the same as the percentage in the general population.

I encourage everyone to read the articles and listen to the podcasts: Native Foster Care: lost Children; Shattered Families

New Case – Dept. of Human Services v. G.D.W.

Posted on | October 13, 2011 | No Comments | megbishop

The Court of Appeals confirmed that statements of child-parties are not hearsay and are admissible as statements of party opponents. The court also affirmed that the sexual abuse of a child-party is an aggravated circumstance that relieves DHS from the duty of providing reasonable efforts.
Dept. of Human Services v. G.D.W.

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