Download - Child Welfare Calls (2)
H O W T O A N S W E R T H E M O S T C O M M O N Q U E S T I O N S
P r e s e n t a t i o n f o r K i v e l & H o w a r d , A u g u s t 2 0 1 3
Child Welfare Calls to LegalShield
DHS “just wants to talk”
Trickier than advice in criminal cases, where you would advise “Don’t talk!”
Part of safety assessment is determining caregiver’s “protective capacity.” Cooperating with DHS factors into “protective capacity” determination.
But assert 5th Amendment silence if alleged sex abuse, physical abuse or severe neglect (medical, starvation).
DHS required to try to work with parents before removing kids.
What to tell parents if DHS “wants to talk”
Many cases screened out at investigation with no further action.
Where possible, DHS is required to create “safety plan” for child to stay in home.
Usually not whole story if child pulled out of home for “no reason.”
DHS took
my child
Quick Walk through Court Process
Shelter Hearing – 24 judicial hours
Pretrial Conference – 30 days (admit/deny)
“Trial” (judge - no jury) – 60 days (jurisdiction & disposition)
Citizen Review Board – 180 days
Permanency Hearing – 12 months (safe to return?)
Termination? – 15 of 22 months in foster care
Shelter Hearing - ORS 419B.180
Review reasons for removal – Petition with Affidavit
Probable cause?
Standard of proof = “Preponderance of evidence”
Placement? Return unlikely!
Court appointed attorney
Grandparents can attend
What to Tell Parents
Will find out basic information at court & more in about 1 month.
Court will appoint an attorney.
No LegalShield trial defense coverage –“domestic related” & also not a trial.
DHS required to work with parents to help kids go home. 64.1% reunified.
What to Tell Concerned Grandparents
Guardianship?
Third-Party Custody?
Report to DHS?
Probate Guardianship Third-Party Custody
ORS 125
Focuses more on need of child for protection than who does protecting
“Visitor” may investigate
Easier to change guardian
Annual report to court
ORS 109.119 also applies
ORS 109.119
Focuses more on relationship: “Parent-child” or ongoing personal within 6 months before filing.
Harder to change custody
Custody or visitation
Non-DHS Options
DHS Took My Grandchildren
Attend court – best source of information
Make written request to DHS for hearing notice – send by certified mail
DHS must consider relatives for placement
Early involvement key!
Need to retain attorney if want to intervene
DHS Won’t Do Anything
•• May be working with family
•• Continue to report
•• Reporting doesn’t always mean removal
Grandparents as Foster Parents
Placement ≠ Custody
Foster care means LOTS of rules
Judge can’t direct placement*
Almost impossible to get back child if “decertified” as foster home
CANS (Child and Adolescent Needs and Strengths) Assessment determines foster care rates
Work with child’s attorney &/or CASA
Harder for immediate placement if live out of state (ICPC)
What to Tell Foster Parents
• Long-term preference is for relatives
• Current caretaker preference requires 12 months consecutive in foster home
• Involuntary termination of parental rights seems harder these days
• Need to retain attorney if want limited participation/intervenor status
Indian Child Welfare Act Considerations
Standard of proof = clear and convincing evidence (25 USC § 1912(e))
Applies if child tribal member or eligible for membership & parent is member
Tribe is a party “Active efforts” required to
reunify Guardianship preferred to
adoption No LegalShield referral to
tribal court
ICWA Means Additional Resources
Don’t ask – make it a statement:
“If you have Native American heritage, additional resources may be available to help your family.”
Blood quantum/tribal membership isn’t always necessary.
Tribal court is “real court.”
Court Appointed Special Advocates
ORS 419A.170 governs CASA roles:
• Investigate
• Advocate
• Facilitate & Negotiate
• Monitor
Legal party in juvenile dependency
Not enough for every case
Questions?
Resources
Juvenile Court Improvement Project (JCIP) Benchbookhttp://www.ojd.state.or.us/JuvenileBenchBook.nsf
DHS Child Welfare Procedure Manualhttps://www.dhs.state.or.us/caf/safety_model/procedure_manual/index.html
Oregon’s Legal Guide for Grandparents and Other Relatives Raising Childrenhttp://extension.oregonstate.edu/fch/sites/default/files/documents/legal_rapp_09.pdf