IMPROVING PARENT REPRESENTATION IN DEPENDENCY CASES Presented by: Julie McFarlane Angela Sherbo Dover Norris-York Noah Barish 1
The The Challeng Challenges es of Being a of Being a Parent’s Attorney “The work goes on, the cause use end ndures, ures, the he hope ho e stil ill l li lives, s, and nd the he dream eam sha hall ll ne never er die.” - Senator Edward M. Kennedy, 1932-2009 2
ATTIT ATTITUDES UDES ARE CHA ARE CHANGING NGING “A national consensus is emerging that zealous legal representation for parents is crucial to ensure that the child welfare system produces just outcomes for children. Parents‟ lawyers protect important constitutional rights, prevent the unnecessary entry of children into foster care and guide parents through a complex system.” • - V. Sankaran in ABA Child Law Practice (Sept. 2009) 3
PARENTS’ ATTORNEYS ARE AN IMPORTANT CHECK ON THE STATE’S POWER “Some would say we have chosen to sacrifice children on the altar of parental rights. Others would point out that a regime in which bad parents can lose their children when the state finds what it regards as better parents can easily degenerate into a dystopia where every parent must live in fear that some bureaucrat will decide that another parent is more deserving.” Schuman, J., dissenting in State ex rel DHS v. R.J.T (July 15, 2009) 4
THE THE J JUVENILE LAW UVENILE LAW RES RESOURCE OURCE CENT CENTER ER (JL (JLRC) RC) Funded by OPDS to improve parent representation Website resources: The web address is: http://www.jrplaw.org/juvresocent.aspx • Issue briefs • Case Law Updates • Resources & Links • Juvenile Law Reader JLRC pages Consultation 5
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LEARNING FROM PARENT CLIENTS What clients want from their attorneys and what they get What worked and what did not Positive and negative experiences of parents with attorneys A Family’s Guide to the Child Welfare System http://www.cwla.org/child welfare/familyguide.htm 7
TOOLS FOR AVO TOOLS FOR AVOIDI IDING NG REMO REMOVA VAL L OR OR ACHI AC HIEVIN EVING G EARLY REUNI EARLY REUNIFICA FICATION TION Oregon Safety Model for Lawyers Attachment theory and the trauma of removal 8
THE OREGON THE OREGON SAFETY MODEL SAFETY MODEL (OSM) (OSM) 9
WHO WANTS TO BE A MILLIONAIRE? Agency Name Practice Models • DHS • OSM • CSD • BIC • CAF • F2F • SOSCF • Focus for the 90‟s • DHR • DHS Reorganization • SCF • SNB/SOC 10
OSM Sources DHS web site • http://www.dhs.state.or.us/caf.safety_model/in dex.html#pm OAR‟s • http://www.dhs.state.or.us/policy/childwelfare/ cross_index.htm 11
Protective Action OAR 413-015- 0435(1): “If the CPS worker determines the child is unsafe, the CPS worker must immediately initiate a protective action. This usually occurs during the initial contact, but must occur at any time during the CPS assessment if it is determined that the child is unsafe. The purpose of the protective action is to assure that children are safe while CPS intervention continues and a fuller understanding of the family is obtained . A protective action may or may not involve taking the child into protective custody. A protective action occurs the same day that it is determined the child is unsafe and provides a child with responsible adult supervision and care. Typically a protective action will include a straightforward immediately achievable arrangement such as: arranging and confirming that the parent or caregiver who is the alleged perpetrator will leave and remain away from the home; arranging for a parent or caregiver who is not the alleged perpetrator to leave home with the child; using people and resources available to the family to immediately protect the child; or placing the child in a relative placement, foster care, or appropriate temporary shelter facility.” OAR 413-015- 0435(5): ”The CPS worker must provide a detailed description of the protective action taken to manage the safety threat . . . within five business days following the identification of the safety threat and must include: . . . (f) An explanation of why the protective action is the most suitable, least intrusive action that will protect the child ;” 12
Ongoing Safety Plan OAR 413-015- 0450(1): “At the completion of the CPS assessment when the CPS worker determines, through an analysis of the safety-related information, that a child is unsafe, the CPS worker must develop and document an ongoing safety plan. The purpose of the ongoing safety plan is to control safety threats as they are uniquely occurring within a particular family.” OAR 413-015- 0450(2)(a): “When developing an ongoing safety plan, the CPS worker must: (A) Use a Child Safety Meeting; . . . (C) Explain how the ongoing safety plan is the least intrusive means that can effectively manage identified safety threats occurring within the family;” 13
Child Safety Meeting DHS Child Welfare Procedures Manual, Chapter II, 14: “A Child Safety meeting must be used when developing an ongoing safety plan. The purpose of the Child Safety meeting is to: • Re-evaluate the protective action, if one is in place, to determine if it is appropriate and sufficient as an ongoing safety plan; • Re-confirm all commitments with participants if a protective action is to become an ongoing safety plan; and • Discuss how the ongoing safety plan is the least intrusive means that can effectively manage how safety threats are occurring within the family. All in-home options must be considered before developing an out-of- home safety plan.” 14
Ongoing Case Practice- Definitions OAR 413-040- 0005(6): “ „ Conditions for return ‟ mean a written statement of the specific behaviors, conditions, or circumstances that must exist within a child's home before a child can safely return and remain in the home with an in- home ongoing safety plan.” OAR 413-040- 0005(8): “ „ Expected outcome ‟ means an observable, sustained change in a parent or legal guardian's behavior, condition, or circumstance that, when accomplished, will increase a parent or legal guardian's protective capacity and reduce or eliminate an identified safety threat, and which, when accomplished, will no longer require Child Welfare intervention to manage a child's safety. It is a desired end result and takes effort to achieve.” OAR 413-040- 0005(12): “ „ Ongoing safety plan ‟ means a documented set of actions or interventions that manage a child's safety after the Department has identified one or more safety threats to which the child is vulnerable and determined the parent or caregiver is unable or unwilling to protect the child. An ongoing safety plan can be in-home or out-of-home and is adjusted when necessary to provide the least intrusive interventions.” 15
Conditions For Return DHS Child Welfare Procedures Manual, Chapter III, 5, F.: “Conditions for Return should not be confused with the Expected Outcomes, which are the desired end result, based on a sustained change in the parents‟ behavior, which will signal that Child Welfare‟s intervention is no longer needed. Parents do not necessarily have to change in order for children to be returned to the parents’ home . Instead, to achieve reunification, a well-defined set of interventions to manage the identified safety threats must be in place and must be sufficient to manage the child‟s safety in the parents‟ home. This distinction maintains the focus on reunification as a safety decision, instead of allowing the parents’ involvement and progress with services and treatment activities to become the measure for reunification .” 16
ATTACHMENT ATTACHMENT THE THEORY ORY AND AND THE THE TRAU TRAUMA MA OF R OF REMOVAL EMOVAL 17
CO COUR URTS TS NEED TO NEED TO BE EDU BE EDUCA CATE TED D AN AND D REMINDED REMIN DED OF THE OF THE RISKS O RISKS OF REMOV F REMOVAL AL The risks of removal of the child from the home need to be weighed just as carefully as the risks of leaving the child in the home with an abusive or neglecting parent. Whenever the risk of harm can be minimized with monitoring and/or intensive in home services, the child should remain with the parent(s) 18
ATT ATTACHME ACHMENT, NT, SE SEPARAT PARATION ION AND AND LOSS LOSS Children form attachment to the person who meets their basic physical needs and needs for comfort, touch, stimulation and nurturing. An increasing attachment is formed to the person who meets these needs most consistently. • Resources on attachment: John Bowlby and Mary Ainsworth – The London Blitzkrieg 19
Trauma of Removal Attachment theory and opinion of experts leads to conclusion that removal causes serious trauma Can have devastating emotional and physical impact on the child that may cause: • Child to experience significant rejection/loss that affects formation of attachments • Child may come to expect parental unavailability • Adjustment to FC may be distorted • Provoke fear and anxiety & diminish sense of stability and self Impact varies with child‟s age 20
Harm of Fo Harm of Foster Care ster Care P Place lacemen ment Results of historical empirical research • Methodological concerns • Mixed results New studies on long-term effects which address methodological concerns & more strongly demonstrate traumatic effects of removal and placement 21
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