dependency basics dependency and termination commissioner thurman w. lowans and carrie hoon wayno,...
TRANSCRIPT
Dependency Basics
Dependencyand
TerminationCommissioner Thurman W. Lowans
and Carrie Hoon Wayno, AAGOctober 2012
LAWS OF THE UNIVERSE Left to themselves, things always
go from bad to worse. If everything seems to be going
well, you obviously overlooked something.
In unanimity, there is cowardice and uncritical thinking.
Dependency Lingo
AAG CASA CDMHP ASFA CPT ARY FHSSFRS GAL ICWAC IEP MDT OSE MSW SSODACHINS RA SA SCRC
TANF WIC TCC SER PN TPR ILP ICW CWS DVR
Dependency RCW 13.34 et seq
Dependency
Exclusive Jurisdiction Safety Child’s Well-being Permanence
Legislative Declaration The family unit is a fundamental resource of American life
which should be nurtured. The family unit should remain intact unless a child's right
to conditions of basic nurture, health, or safety is jeopardized.
When the rights of basic nurture, physical and mental health, and safety of the child and the legal rights of the parents are in conflict, the rights and safety of the child should prevail.
In making reasonable efforts under this chapter, the child's health and safety shall be the paramount concern.
The right of a child to basic nurturing includes the right to a safe, stable, and permanent home and a speedy resolution of any proceeding under this chapter.
Dependency
Dependent Child: Abandoned Abused or Neglected No Parent Capable of Care and
Substantial Danger to Child
Dependency
Participants Parents, Custodian or Guardian Guardian Ad Litem/CASA DSHS Attorneys for All Service Providers Foster Parents Relatives
Open Dependency Law Dependency and Termination
Hearings are Open to the Public. RCW 13.34.115
Discretion to Close – Best Interests of Child
No Access to Files
ICWA definition of “Indian child” ICWA applies to children who fall
within legal definition of “Indian child.”
A person under eighteen years of age who is either: (a) A member of an Indian tribe; or (b) eligible for membership in an
Indian tribe and is the biological child of a member of an Indian tribe.
Order to Take Child Upon showing of “Imminent Harm” Sexual abuse or exploitation Failure to perform basic parental
functions, obligations and duties as the result of substance abuse
When possible, DSHS must notify Indian child’s tribe before removal, and if that is not possible, by the quickest means possible.
Shelter Care Hearings
72 Hours Release/return Child unless Order Give Rights to Parents Appoint GAL/CASA Rules of Evidence Do Not Apply
Practice Tips: Ask parents early and often about
Indian Heritage – ICWA issues Ask parents early and often about
Relatives and Suitable Persons for placement resources
Ask parents early and often about Relatives/other Adults as resources for visitation
Tell parents your expectations for next Hearing
Notice to Tribe In any involuntary child custody
proceeding, the petitioning party must notify the child’s Tribe(s) if: the court or DSHS know or have
reason to know a child is or may be an Indian child.
Notice must be by certified mail, using the mandatory ICWA notice form.
Shelter Care HearingsIn non-ICWA case, Court must
Release/return Child unless Courtfinds Reasonable Cause to believe That Reasonable Efforts to prevent/avoid
Removal have been made, and: There is No parent to provide supervision and
care; or Return of child would present serious threat of
substantial harm; or
The Parent has been charged with custodial interference
Shelter Care HearingsIn ICWA case, Court must Release/return
Child unless Courtfinds Reasonable Cause to believe That Active Efforts to prevent/avoid
Removal have been made, and: There is No parent to provide supervision and
care; or Return of child would present serious threat of
substantial harm; or
The Parent has been charged with custodial interference
Shelter Care Hearing
30 Day Maximum Modified on Substantial Change in
Circumstances Relative Placement Safety and Welfare of Child DSHS Case Conference May Be
Scheduled
Fact Finding Hearing
Fact Finding within 75 days Rules of Evidence Apply Preponderance of the Evidence If Indian child, must also prove by clear
and convincing evidence that continued custody is likely to result in serious damage
Stipulation by Parent(s)
Fact Finding Hearing
Stipulations by Parents On the Record In Writing and Signed by Parent After Inquiry by Court and Findings as
to Duress, Misrepresentation and Fraud
Disposition Hearing
Often Occurs Jointly or Immediately After Fact Finding, but Must within 14 days of Fact Finding
Rules of Evidence Do Not Apply Individual Service & Safety Plan (ISSP) Dispositional Order Placement Considerations Review Hearing within 90 days or six months
from beginning of placement, whichever is first
ICWA Placement Preferences In any foster care placement, a preference
shall be given, in absence of good cause to the contrary, to the Indian child’s placement with:
A member of the child’s extended family; A foster home licensed or specified by the child’s
tribe; A licensed or approved Indian foster home; A foster care agency approved by an Indian tribe
with a program suitable to meet the child’s needs; A non-Indian foster care agency approved by the
child’s tribe; A non-Indian family committed to promoting
extended family visits and maintaining the child’s relationship with the tribe.
Dependency Review Hearing Within 6 months of Last Review Findings in re Compliance and
Progress as to: Parents DSHS
Placement and Visitation Considerations
Schedule Review within 6 months
Be a Squeaky Wheel ICPC issues need to be followed Status of evaluations and
assessments IEP and other issues for education
of child Sibling visitation Medical evaluations for child Stability of Placement for child
In Home Placement Contingent upon:
Compliance with court orders on care & supervision of child
and Continued participation in available
substance abuse or mental health treatment if contributing factor
RCW 13.33.138(2)(a)
Removal From Home Noncompliance with case plan or
Order Inability, unwillingness or failure to
participate in services or treatment or Failure to successfully and
substantially complete available services or treatment RCW 13.34.138(2)(b)
Removal After Return Home Within 30 days of removal, the
Court shall hold a Review Hearing to determine: Whether Permanency Plan should be
changed Whether a Termination Petition should
be filed Such other action as may be
warranted
Permanency Planning Hearing Within 12 months of Placement Clear, Cogent and Convincing
Evidence Rules of Evidence do not Apply Findings in re Compliance and
Progress as to: Parents DSHS
Permanency Planning Hearing Placement Considerations Permanent Plan:
Return Home Adoption Guardianship 3rd Party Custody Long Term Relative Care Long Term Foster Care Independent Living
Permanency Planning Hearing
Issue Orders Concerning Permanent Plan Deadline for Filing Petition for
Termination Hearing on Status of Return Home
Schedule Review within 6 months
Racial/Ethnic Disproportionality
African American children are: Almost twice as likely as Caucasian
children to be referred to CPS 1.2 times more likely to be removed
from home 1.5 times more likely be in care over 2
years
Racial/Ethnic Disproportionality
Native American children are: 3 times more likely than Caucasian
children to be referred to CPS 1.6 times more likely to be removed
from home 2 times more likely to be in care over 2
years
Racial/Ethnic Disproportionality
Hispanic children are: 1.3 times more likely than Caucasian
children to be referred to CPS No more likely to be removed from
home No more likely to be in care over 2
years
Racial/Ethnic Disproportionality
Asian children are: Less likely than Caucasian children to
be referred to CPS No more likely than Caucasian children
to be placed into foster care No more likely to be in care over 2
years
Termination Trials
Rules of Evidence Apply Clear, Cogent and Convincing
Evidence Beyond a Reasonable Doubt for
ICWA Element Trials Receive Docketing Priority Dependency Continues until
Permanency is Achieved
Termination Trials
Child found Dependent Dispositional Order entered Out of Home at least 6 months All necessary & reasonably available services
offered or provided Little likelihood of remedy to conditions to
permit return within near future Continuation of parent-child relationship
clearly diminishes child’s prospects for integration into permanent home
Termination in child’s best interests
Termination Trials For Indian children, court can only
order termination if it determines based on evidence beyond a reasonable doubt that continued custody of the child by the parent is likely to result in serious emotional or physical damage to the child.
Must include testimony of qualified exert witness, as defined by ICWA.
Adoption & SafeFamilies Act (ASFA) Safety and Permanency Permanent Planning within 12
months Reasonable Efforts to:
Prevent Removal Reunify with Family Effect Permanent Placement of Child
Adoption & SafeFamilies Act (ASFA)
Petition for Termination to be filed: In Foster Care 15 out of 22 months Aggravated Circumstances are found Unless Compelling Reasons found not
to
Indian Child Welfare Act (ICWA)
Exclusive Jurisdiction for Tribal Courts
Who is an Indian Child? Right to Intervene Failure to Follow ICWA
Interstate Compact on Placement of Children (ICPC) Out of State Placement by a Court Safety and Oversight
considerations Referral to another State Timing – Shelter Care –vs-
Dependency Timing – Response by another
State
Interstate Compact on Placement of Children (ICPC) Out of State Placement with a
Parent
In Re Dependency of: D.F.-M Division I, No. 63624-3-I, August 2,
2010
A Brave New World
It’s About The Kids