social services attorneys’ conference march 9-10, 2006 legislative update: juvenile law janet...

Social Services Attorneys’ ConferenceMarch 9-10, 2006

Legislative Update:

Juvenile Law

Janet Mason Institute of Government

SL 2005-55 (H 277)

Pre-Petition Role of DSS:

Multiple Response

• “Assessment” replaces “investigation.”

• After a report, DSS conducts

–an investigative assessment or

–a family assessment.

Pre-Petition

• Investigative Assessment–Formal information-gathering process–In response to report of abuse or

“serious neglect”

• Family Assessment–Focuses on family needs and

strengths–In response to report of dependency

or neglect other than serious neglect

Serious NeglectSocial Services Commission proposed rule:

“Serious neglect means conduct, behavior, or inaction that evidences a disregard of consequences of such magnitude as to constitute an unequivocal danger to a child’s health, welfare or safety.”

“Responsible Individuals List”

• DHHS must establish “Responsible Individuals List”

• If local DSS finds abuse or serious neglect, the Director

– determines who is RI

– sends name of RI to DHHS

– gives the RI “personal written notice”

Access to Information on RI List

DHHS may release information

from the list to:

– child-caring institutions

– child-placing agencies

– group homes

– providers of foster care, child care, or adoption services

Removal of Name from ListA person may seek review and removal of name from list by:

• DSS Director

• (District Attorney)

• District Court

• Court of Appeals

Review stops if DSS files a petition.

Petition to District Court for Removal of Name from List

• Hearing closed at party’s request

• No right to appointed counsel

• DSS has burden of proof, by preponderance of evidence

• Rules of evidence (sort of) apply

• Hearing stayed if DSS files juvenile petition

• Order must be entered within 30 days

Hearing on Petition to Remove Name

1. DSS director found that substantial evidence supported determination of

– abuse or serious neglect and

– identity of responsible individual

2. Substantial Evidence: “Relevant evidence a reasonable mind would accept as adequate to support a conclusion”

3. Issue for Court = correctness of DSS director’s determination

Person may not seek removal of name if s/he is:

1. convicted in relation to same incident

2. named respondent in juvenile case re. same incident

3. fails to seek timely review or file timely petition

4. fails to keep DSS informed of current address

Also, SL 2005-55 (H 277):

• Interference/obstruction petition must state reason for initiating assessment

• Assessment involving day care need not include visit to child’s home

• Act became effective 10/1/05

SL 2005-398 (H 1150)

1. Counsel for Parents2. Guardian ad Litem for Parent3. Time Limits4. Change in Child’s Placement5. Appeals

Applies to petitions or actionsfiled on or after 10/1/05.

Appointed Counsel for Parent• In every abuse, neglect, dependency

case, summons or notice must show appointment of “provisional counsel”

• At first hearing, court affirms appointment unless parent:

1. Does not appear at the hearing,

2. Is not indigent,

3. Has retained counsel, or

4. Waives the right to counsel.

Guardian ad Litem for Parent[Petitions & Actions Filed Before 10/1/05]

• Allegation of dependency caused by substance abuse, mental illness, etc., always

• Requirement that court appoint guardian ad litem

Guardian ad Litem for Parent[Petitions & Actions Filed Before 10/1/05]

• Without allegation of dependency, GAL may or may not be required.

– Is required if case is clearly focused on parent’s incapacity

– Not required just because some evidence relates to substance abuse or mental health issue

[Petitions & Actions Filed Before 10/1/05]

OR

Allegations or evidence may trigger obligation on court to conduct hearing on the need for a guardian ad litem

Petitions & Actions Filed on or after 10/1/05

Court may appoint GAL for a parent, per Rule 17, if court finds reasonable basis to believe the parent:

1. is incompetent or has diminished capacity and

2. cannot adequately act in his or her own interest.

GAL for Parent–after 10/1/05

1. Allegations not determinative

2. Court may appoint GAL on own motion or motion of party

3. Parent’s attorney may not also be GAL

4. GAL has privilege & confidentiality same as attorney

5. Role of the GAL is still unclear

1. Is the GAL a “guardian of due process”? (In re Shepherd)

2. Does GAL step into the shoes of the respondent and control the litigation? (In re J.A.A.)

Time Limits

New RequirementIn abuse, neglect, dependency case disposition hearing must be

–Immediately after adjudication

–Completed with 30 days

If an order that is required to be entered within 30 days is not:

1. Clerk must schedule hearing for first juvenile session to

• determine & explain reason for delay

• obtain clarification of contents

2. Order must be entered within

10 days after that hearing

Change in Child’s Placement

DSS must notify child’s GAL

1. when DSS intends to change

the child’s placement or

2. if emergency prevents that,

• within 72 hours after changing

placement or

• sooner if local rules require

AppealsActions Filed on or after 10/1/05

• Lawyer for appealing party must sign notice of appeal

• Attorney advocate must sign notice of appeal when juvenile appeals

When May Attorney Give Notice of Appeal?

• Time for notice of appeal = 30 days

• Lawyer for appealing party may give notice of appeal only if directly instructed by client to do so after conclusion of proceeding

Which Orders May be Appealed?An order that:

1. finds absence of jurisdiction

2. determines case & precludes later appeal

3. is initial disposition (appeal may include adjudication)

4. changes custody (other than nonsecure)

5. ceases reunification efforts (*note timing)

6. grants or denies petition or motion to terminate parental rights

Appeal of Order Ceasing Reunification Efforts

• Guardian or custodian may appeal “immediately”

• Party may give notice in court or in writing within 10 days of hearing, to preserve issue for appeal

• Parent may appeal– when appealing termination order, or– “within 180 days of the order” if no

termination motion or petition is filed

Jurisdiction During Appeal

• In RTW Supreme Court affirmed Stratton, rejected Hopkins

• Court interpreted statute to say trial court has jurisdiction to terminate parental rights during appeal of prior order

• Holding applies only to actions and proceedings filed before 10/1/05

In Actions Filed on/after 10/1/05, During an Appeal:

1. Order on appeal may be

enforced, unless stayed by

trial or appellate court

2. Unless appellate court orders otherwise, trial court may exercise jurisdiction & conduct hearings, except under Article 11 (TPR)

For Cases Appealed on or after 5/1/06

• Both trial counsel and appellant must sign notice of appeal

• Appellant “must cooperate with counsel throughout the appeal”

• Extensions of time to prepare transcript only in extraordinary circumstances

• Accelerated preparation of record• Trial counsel must assist in

preparing record

Termination of Parental Rights• At disposition, court must determine whether

termination is in child’s best interest. – Child’s age– Likelihood of adoption– Whether tpr will help achieve plan– Bond between parent and child– Quality of child’s relationship with

proposed adoptive parent, guardian, or custodian

– Other relevant factors

SL 2005-320 (H 801)

Addresses:

1. Relationship of Chapters 7B and 50

2. When and how a juvenile case ends

Applies to:

All juvenile proceedings and civil

actions pending or filed on or after

10/1/05

Competing Custody Orders

If both juvenile (Ch. 7B) and civil (Ch. 50 or 50B) custody orders exist,

1. The juvenile order controls, and

2. The civil order is stayed.

When Both 7B and 50 Orders Exist:Court in the juvenile case may

–Consolidate the cases

–Dissolve the stay

–Stay the juvenile proceeding

–Transfer either case to the district of the other case, after consulting the court in that district

Terminating Jurisdiction in Juvenile Cases

1. When does a juvenile case end?

2. What is status of child and parties when case ends? [Dexter, 2002]

3. Can the court turn a juvenile order into a civil custody order?

YES, court may modify or create a Ch. 50 custody order and end the

juvenile case if

1. Permanent plan = custody with a parent, relative, or other person; and

2. Court makes Ch. 50 findings; and

3. State intervention through juvenile court is no longer required.

SL 2005-146 (H 97)

New ground for terminating parental rights:

• Parent has committed murder or voluntary manslaughter of child’s other parent

– Petitioner may prove conviction or elements of offense

– Court must consider whether crime involved self-defense, defense of others, or other justification

SL 2005-254 (S 594)

When counsel appointed for a parent on or after 10/1/05, the Court:

• may require parent to pay fees if child is adjudicated abused, neglected, or dependent, or parent’s rights are terminated.

• must consider parent’s ability to pay.

• must file judgment immediately if parent fails to pay court-ordered fees.