IMPROVING PARENT REPRESENTATION IN DEPENDENCY CASES Presented by: - - PowerPoint PPT Presentation
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 Parents Attorney The work goes on, the cause
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Presented by: Julie McFarlane Angela Sherbo Dover Norris-York Noah Barish
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“A national consensus is emerging that zealous
legal representation for parents is crucial to ensure that the child welfare system produces just
important constitutional rights, prevent the unnecessary entry of children into foster care and guide parents through a complex system.”
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PARENTS’ ATTORNEYS ARE AN IMPORTANT CHECK ON THE STATE’S POWER “Some would say we have chosen to sacrifice children
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)
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Funded by OPDS to improve parent
Website resources: The web address
Consultation
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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
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TOOLS FOR AVO TOOLS FOR AVOIDI IDING NG REMO REMOVA VAL L OR OR AC ACHI HIEVIN EVING G EARLY REUNI EARLY REUNIFICA FICATION TION
Oregon Safety
Model for Lawyers
Attachment theory
and the trauma of removal
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Agency Name
Practice Models
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DHS web site
dex.html#pm
OAR‟s
cross_index.htm
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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,
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;”
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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;”
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DHS Child Welfare Procedures Manual, Chapter II, 14: “A Child Safety meeting must be used when developing an
determine if it is appropriate and sufficient as an ongoing safety plan;
action is to become an ongoing safety plan; and
means that can effectively manage how safety threats are
considered before developing an out-of-home safety plan.”
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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.”
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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
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.”
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CO COUR URTS TS NEED TO NEED TO BE EDU BE EDUCA CATE TED D AN AND D REMIN REMINDED DED OF THE OF THE RISKS O RISKS OF REMOV F REMOVAL AL
The risks of removal of the child from the
Whenever the risk of harm can be
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Children form attachment to the
person who meets their basic physical needs and needs for comfort, touch, stimulation and
attachment is formed to the person who meets these needs most consistently.
Bowlby and Mary Ainsworth – The London Blitzkrieg
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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:
affects formation of attachments
and self
Impact varies with child‟s age
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Results of historical empirical
research
New studies on long-term
effects which address methodological concerns & more strongly demonstrate traumatic effects of removal and placement
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The University of Minnesota Study
problem-solving, task-teaching, impulse control, emotional health, teacher reports & psychopathology
Findings: Children placed in stranger foster
care displayed significantly higher levels of behavior problems than maltreated children who remained in their homes or were placed in familiar care – effect continued throughout adolescence – more drastic for children placed after kindergarten – at older age behavior problems immediate and continued after FC
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Tracked thousands of children found
Findings re: investigator propensity to
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Other Other nega negative tive outc
for children dren who who remain i remain in n foster care foster care
Casey Family Programs/Harvard Med School
– Northwest Foster Care Alumni Study:
likely to finish college;
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TH THE E LAW SUP LAW SUPPO PORTS RTS A C A CAUT AUTIOUS IOUS WEI WEIGH GHING ING OF OF RISK RISKS S OF OF REMO REMOVAL VAL
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There is a “strong preference that
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The 14th Amendment provides
a fundamental right for parents to be free of unwarranted governmental interference in child rearing.
Santosky v. Kramer
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See using the Oregon Safety Model to
advocate for Parents
At the shelter hearing
reasonable services can prevent or eliminate the need to separate the family – ORS 419B.185 (1)(b) – ORS 419B.185 (1)(c) the court shall consider the child or ward‟s health and safety the paramount concerns.
written documentation of: why protective custody is in the best interests of the child – requiring analysis of why harm of leaving child in home endangers child‟s health and welfare more than harm of removal.
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At review hearings
parent, court may direct placement with parents
circumstances and order modification in placement;
including:
return;
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WRITTEN WRITTEN FINDINGS FINDINGS FOR FOR REMOVAL REMOVAL DO DO NO NOT T EQU EQUAL AL A A CHECK CHECK
ORS 419B.185 (1)(d): the court
shall make a written finding in every order of removal that describes why it is in the best interests of the child or ward that the child or ward be removed from the home
The court should explain why
the harms from leaving child in home endanger health and welfare more than the known harms of removal
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Know the risks of removal Discover and present the harms of
Humanize and individualize the trauma Acknowledge and counteract the
Present alternatives
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SER Juv. Dept. v. M.U. - remedy for late
SER Juv. Dept. v. Jenkins - no direct
SER Juv. Dept. v. D.J. - untimely set
SER DHS v. G.R. - set aside standard
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SER Juv. Dept. v. L.V. - “unsupported
SER Juv. Dept. v. K.L. - “limited record” SER DHS v. T.N. - attached reports SER DHS v. N.S. - information
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SER DHS v. J.N. - failure to make finding of
facts
SER DHS v. M.A.- nature of findings required
by 419B.476(5)
SER Juv. Dept. v. J.F.B. - no requirement to
preserve error for lack of findings
SER DHS v. T.N. no attached reports
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SER Juv. Dept. v. W.P. - Exclusionary rule does not
apply in dependency cases
interest, the restriction at issue here-an order determining that child is within the jurisdiction of the juvenile court-is temporary and conditional. . . . The proceeding did not result in a final determination depriving father of a constitutionally protected liberty interest, such as could result from other criminal or civil proceedings.”
SER Juv. Dept. v. G.A.K. and A.M.F. - exclusion of
delayed discovery and child‟s interest
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PROC PROCEDUR EDURAL AL ISSUES ISSUES - co cont ntinue inued
SER Juv. Dept. G.L. - -ORS 419B.343(1)(a),
which requires DHS‟s case planning to bear a
“must also be understood to require that the Court‟s specification of a particular type of service that DHS provides bears a rational relationship to the jurisdictional findings.”
SER Juv. Dept. v. R.N.L. - second evaluation
information
ensure that all relevant, helpful and accurate information was available to decide a case that will drastically affect the lives of M and her mother.”
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TERMINATION TERMINATION OF PAR OF PARENT ENTAL AL RIGHTS RIGHTS – Unfitne Unfitness ss ORS ORS 41 419B.50 9B.504
SER DHS v. A.T. - relapses and father‟s fitness after being
released from prison
success; we find it to be highly unlikely that father would be able to balance the stresses of everyday living, work, recovery, and domestic violence and parenting training, and to progress to the point where integration is possible, in less than six months.”
SER DHS v. J.S. - mother: “unable to permanently separate
from father, a person who has physically abused her in the presence of the children.” - Father: engaged in services at the time of trial, but had “history of poor performance.” -Children: TPR in best interests, because they were “adoptable and currently living with their prospective adoptive family”
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TERM TERMINATION INATION OF OF PAR PARENTAL ENTAL RIGHTS RIGHTS – Unfitne Unfitness ss ORS ORS 41 419B.50 9B.504 4 - co cont ntinue inued
SER DHS v. D.F.W. - parents with substance abuse issues
had begun resolving their problems - critical of DHS efforts
[factors other than demeanor] such as internal consistency, logic, and corroboration. We are as able as the trial court to evaluate those other factors.”
SER DHS v. R.T. - parents made “substantial and sustained
efforts” to address problems
additional months” for permanency.
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TERM TERMINATION INATION OF OF PAR PARENTAL ENTAL RIGHTS RIGHTS – Unfitne Unfitness ss ORS ORS 41 419B.50 9B.504 4 - co cont ntinue inued
SER DHS v. A.L.S. - child spent half of life in
foster care, with risk for reactive attachment disorder
from the parent at a young age and had lived with the parent only for sporadic periods, where children in such cases have special needs and are healthily bonded to their foster parents, the issue is not whether a parent is minimally adequate, but whether the parent has waited too long to reform in light of the child's pressing needs.”
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TERM TERMINATION INATION OF OF PAR PARENTAL ENTAL RIGHTS RIGHTS – Unfitne Unfitness ss ORS ORS 41 419B.50 9B.504 4 - co cont ntinue inued
State ex rel DHS v. R.J.T.
harming behavior
“mimic” mother‟s self-harming behaviors, suffer from depression, and “develop a painful sense of responsibility” for mother‟s condition.
-strong Schuman dissent: “under our statutory and
constitutional law, helping children by taking them from a bad but marginally competent biological parent and placing them with an obviously better one is (to put it bluntly) illegal. The child's best interest, in other words, enters into the calculation
evidence that the parent's conduct or conditions have a seriously detrimental effect on the child.”
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TERM TERMINATION INATION OF OF PAR PARENTAL ENTAL RIGHTS RIGHTS – Unfitne Unfitness ss ORS ORS 41 419B.50 9B.504 4 - co cont ntinue inued
State ex rel DHS v. S.W. - not deciding
effective”
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SER DHS v. K.C. - extreme conduct under
419B.502 provides procedure for termination even if the parent is fit at the time of hearing and the conduct will not recur.
SER DHS v. A.C. - mother and husband made
positive changes since termination of two previous children
find that the conditions giving rise to the previous termination action have been ameliorated to the extent that termination of mother's parental rights based on her prior extreme conduct is not appropriate.”
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SER Juv. Dept. v. T.N. - active efforts in
SER DHS v. K.C.J.- serious emotional
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SER DHS v. H.S.C. -father in ICE custody during part of
case
possible for the ward to safely return home based on the circumstances existing during the period prior to the permanency hearing and that period must be sufficient in length to afford a good opportunity to assess parental progress.”
SER Juv. Dept. v. K.L. - “we do not see a period of
independence as an absolute requirement, as the trial court apparently did.”
successfully participating in services that will make it possible for the child or ward to safely return home within a reasonable time * * *."
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SER Juv. Dept. v. K.D. - Compelling reasons not to file TPR:
new case plan.”
SER Juv. Dept. v. C.D.J. - DHS efforts to establish
incarcerated father‟s paternity constituted reasonable efforts
pace of the permanency hearing, father's acknowledgement of paternity and his cooperation in paternity testing constituted sufficient progress toward reunification under the circumstances.”
SER DHS v. E.K. -with regard to DHS‟s reasonable efforts,
to suggest that mother seek community resources to gain insight into her children's special needs.”
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SER Juv. Dept. v. S.A. - no allegation of
current endangerment
State v. S.M.P. - evidence of physical abuse
sufficient for jurisdiction, even if mother did not inflict injuries
SER Juv. Dept. v. D.T.C. - focus is likelihood
father‟s failure to comply with specific DHS services
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What is a Parenting Capacity Evaluation?
Specific referral questions
Assessments
Integrating findings and report writing
Different from a psychological evaluation?
some with validity issues
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Describe characteristics and patterns of a
parent's functioning in adult and childrearing roles, explain possible reasons for abnormal or problematic behavior, and the potential for change
Identify person-based and environmental
conditions likely to positively or negatively influence the behavior
Describe children's functioning, needs, and
risks in relation to the parent's skills and deficits
Provide directions for intervention
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Compare an individual's parenting fitness to universal
parenting standards
Draw conclusions about parenting adequacy based only
Predict parenting capacity from mental health diagnoses Rule out the effects of situational influences (e.g., time
limitations, demand characteristics, current stressors, cultural issues) on the assessment process
Predict future behavior with certainty Answer questions not articulated by the referral source
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vague referral questions single office session with parent no direct observation of child or parent-child interactions reliance on psychological instruments not directly related
to parenting and not designed to assess parenting capacity (intelligence tests, personality instruments, etc.)
limited use of written records minimal collateral info from caseworkers or therapists failure to warn about limits of confidentiality overstated conclusions conclusions about ultimate legal issue (termination) conclusions solely based on mental health diagnosis
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Argue evaluation is scientific evidence
(“possesses significantly increased potential to influence the trier of fact”) State v. O’Key, 321 Or 285, 293 (1995)
motion in limine / OEC 104 hearing Scientific evidence must be:
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Match red flags with factors regarding scientific
(1984); State v. O’Key, 321 Or 285, 303-306 (1995).
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JLRC Issue Brief- Admissibility of Parenting
Capacity Evaluations
Karen S. Budd, Assessing Parenting Capacity
in a Child Welfare Context, 27 Child. & Youth Services J. 429, 432 (2005).
Guidelines for Psychological Evaluations in
Child Protection Matters, 54 Amer. Psychologist 586-93 (1999) (also online)
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JLRC@jrplaw.org Angela Sherbo: angela@jrplaw.org Julie McFarlane: julie@jrplaw.org Juvenile Rights Project, Inc. 401 NE 19th Ave. Suite 200 Portland, OR 97232 503-232-2540