September 13, 2010
North Dakota's Attempts at Foster Care Reform
A description of a North Dakota "family preservation initiative" that seeks to reform the foster care system:
North Dakota is at the forefront of a new trend in the way foster care is administered: Don't put children in foster care.
The idea is to help families help themselves so they can keep their children, rather than having a judge order them into the foster care system.
When children stay with their families, they typically do better in school, and the odds of them aging out of the foster care system and struggling with adult life free of the assistance they received before are diminished, said Gary Wolsky, president and CEO of The Village Family Service Center in Fargo.
"The problems get costlier to fix if left untended," Wolsky said. "Prevention is always cheaper."
The effort could save taxpayers a bundle because it's more expensive to put a child through foster care than it is to help the whole family, Wolsky said.
The family preservation initiative has also grabbed the attention of some North Dakota lawmakers, who say they hope to see the idea take off in the state.
"In the long run, I think it will cost us less money," said Sen. Judy Lee, R-West Fargo.
North Dakota lawmakers have had an eye on early family intervention since 2006, when a pilot family empowerment program the Family Group Decision Making Program was started.
This puts an emphasis on child safety, permanency, and placing foster children in adoption as soon as necessary, which may include terminating parental rights of biological parents. There are still times when, for a variety of reasons and despite additional help, parents are not able to adequately care for a child.
It costs an estimated $3,000 to $4,000 for one family to participate in family preservation programs. This method tends to cost less over the long term because foster children usually spend an average of a year in foster care, said Sandi Zaleski, who works for The Village and is the director for these programs.
On the flip side, a foster family with a 10-year-old could get up to $752 a month, which adds up to $9,024 a year, not including other expenses.
Read more here.
April 30, 2010
Recordings Evidence in IL Fitness Hearing
February 24, 2010
Recent Case on Parental Rights in IL
January 07, 2010
In Chambers Examination of Children in TPR Case Violates Due Process
A Michigan Court of Appeals recently ruled that an unrecorded in camera interview with 4 children involved in a proceeding to terminate their parents' rights resulted in a due process violation.
The family involved in these proceedings has a protracted history with protected services.Before the petition was filed in the instant matter, the family had been referred to protective services 24 times. These referrals concerned allegations of physical abuse, truancy, or physical and educational neglect. Physical abuse was suspected because the male children often had bruises, while physical neglect was suspected because the children often came to school improperly dressed or having poor hygiene. In addition, the children missed school often, approximately 20 to 30 days per year, and arrived to school late without excuses. There were also ongoing concerns regarding suspected medical and educational neglect of one child, S.H.C., who was deaf and had very little knowledge of American Sign Language (ASL).
A petition was filed to terminate parental rights based on allegations of sexual abuse, physical abuse, and educational neglect. Before making the decision to terminate parental rights, the court conducted in camera interviews with all 4 children to determine whether the TPR would be in the children's best interests. Distinguishing custody disputes and other family law matters in which in camera examinations are permitted, the court held that:
given the fundamental parental rights involved in termination proceedings, the risk of an erroneous deprivation of those rights given the in camera procedure, and the fact that the information is otherwise easily obtained, it is clear that the child’s interest in avoiding the discomfort caused by testifying in open court does not outweigh the parents’ interest in having the child testify on the record. Thus, it is our view that the use of an unrecorded and off the record in camera interview in the context of a juvenile proceeding, for whatever purpose, constitutes a violation of parents’ fundamental due process rights.
Read the opinion here.
January 30, 2009
Conference - Drugs, Pregnancy and Parenting
Drugs, Pregnancy and Parenting:
What the Experts in Medicine, Social Work and the Law Have to Say
Wednesday, February 11, 2009, New York City
People working in the field of criminal law, family law, and child welfare often have cases that involve issues of drug use. These lawyers, social workers, counselors, advocates and investigators, however, are often trying to do their jobs without the benefit of evidence-based research or access to experts knowledgeable about drugs, drug treatment and the relationship between drug use, pregnancy and parenting. Drugs, Pregnancy and Parenting: What the Experts in Medicine, Social Work and the Law Have to Say will provide a unique opportunity to meet and learn from the experts. Register at: http://napwtraining.eventbrite.com/
This dynamic program features nationally and internationally renowned medical, social work, and legal experts as well as people with direct experience who will help distinguish myth from fact, evidence-based information from media hype and provide meaningful tools for improved advocacy, representation, care and treatment. Panelists will discuss current research on marijuana, cocaine, methamphetamine, as well as other areas of research regarding drug use, prenatal exposure to drugs, recovery, treatment and parenting. This research is critical for effective representation and care.
Discussion points will include:
• What does a positive drug test predict about future neglect and abuse?
• What tools can I use to distinguish between myth and fact regarding the effect of drugs and other claims made about drug use and drug users? Is there such a thing as a "crack baby"?
• Is there a difference between drug use and abuse? Can a person parent and be a drug user?
• How should social workers, lawyers, counselors, advocates and judges use and interpret drug tests?
• How do we determine what, if any, treatment should be required and how do we measure its success?
• What is the relationship between drug use, abstinence, relapse and recovery?
• What does evidence-based research tell us about the effectiveness of different kinds of drug treatment?
• How can we implement safety plans that keep families together?
• How can I best advocate for/ help my client when drug use is an issue?
No matter what kind of work you do or practice you have, this course will challenge your assumptions, identify valuable resources and generate hope about families where drug use is an issue.
When: Wednesday, February 11, 2009, 9am to 6pm.
Where: NYU School of Law, 40 Washington Square South, Manhattan
Registration: The fee is $20 in advance or $25 at the door. Breakfast, lunch and beverages will be provided. Financial aid is available. Please register at: http://napwtraining.eventbrite.com/
This program was developed in consultation with representatives from all aspects of New York City 's child welfare system. It is co-sponsored by National Advocates for Pregnant Women, New York University School of Law, and the New York University Silver School of Social Work.
Continuing Legal Education, (7 NY-CLE Credits: 5 Areas of Professional Practice, 2 Skills), Social Work (8 Credits) and CASAC (NYS OASAS 7.5 clock hours approved for CASAC, CPP and/or CPS initial credentialing and/or renewal credits) for full or partial day program available for New York. This program is appropriate for practitioners at all levels. Students are welcome.
For more information, contact Allison Guttu, NAPW Equal Justice Works Staff Attorney, at 212-255-9252 or email@example.com.
RR (thanks to Maria Arias)
September 27, 2008
The Center for Children, Law & Policy announces
Child Centered Jurisprudence and Feminist Jurisprudence: Exploring The Connections And The Tensions
Friday, November 14, 2008 @ the University of Houston Law Center
§ Prof. Annette Ruth Appell, Associate Dean of Clinical Affairs and Professor of Law, Washington University School of Law
§ Prof. Martha Albertson Fineman, Robert W. Woodruff Professor of Law, Emory University School of Law
§ Prof. Martin Guggenheim, Fiorello LaGuardia Professor of Clinical Law, New York University School of Law
§ Prof. Angela P. Harris, Professor of Law; Executive Committee Member, Center for Social Justice, Boalt Hall, UC Berkeley
§ Prof. Barbara Bennett Woodhouse, David H. Levin Chair in Family Law and Director of the Center on Children and Families at Levin College of Law, University of Florida
§ With Commentary by Prof. Ellen Marrus, Co-Director, Center for Children, Law & Policy, George Butler Research Professor of Law, University of Houston Law Center, Prof. Laura Oren, Co-Director, Center for Children, Law & Policy, Law Foundation Professor of Law, University of Houston Law Center
§ Date: Friday, November 14th, 2008
§ Location: University of Houston Law Center
§ Event Time: 8:30 a.m. to 12:30 p.m.
§ Registration Cost: Pre-Registration $25, after November 1st increased to $50.
§ CLE: 2.75 Hours
More details at website here.
(RR September 27, 2008).
February 11, 2008
Case Law Development: Termination of Parental Rights Does not End Child Support Obligation
In an unpublished opinion, the Illinois Supreme Court has held that the termination of parental rights does not extinguish a child support obligation unless the child is being adopted. The court relied on the language of the Illinois statute, which refers to termination of parental obligations as to “a child sought to be adopted.” The court stated: "We conclude that, after the entry of an order terminating parental rights, where the child is not adopted, [the Act] applies as its plain language indicates, only where the child is 'sought to be adopted'…. To hold that this language is of no effect, as respondent urges, would render the language superfluous or meaningless." The court rejected the appeals court’s interpretation of the “sought to be adopted” language as including any child 'available for adoption', noting that the legislature could have specifically used this language.
Three judges dissented, arguing that the court’s interpretation created significant inconsistencies in the law, both between the termination statute and the juvenile code and between this holding and prior precedent.
Illinois DHFS v. Warner, Ill., Illinois Supreme Court, January 25, 2008
Opinion on the web (last visited February 9, 2008 bgf)
January 22, 2008
Case Law Development: Burden of Proof of Indian Child Welfare Act Element of "Active Efforts" to Reunite
The Nebraska Supreme Court joins those states that interpret the Indian Child Welfare Act to require only clear and convincing proof that "active efforts have been made to provide remedial services and rehabilitative programs" 25 U.S.C. 1912(d) in order to terminate parental rights. Other states have held that this element must be proven beyond a reasonable doubt. The Nebraska Supreme Court analyzes the language of the ICWA and concludes that the higher standard, mandated by the act for other elements of the ICWA, is not required for this element.
January 19, 2008
Case Law Development: Errors in Appointing GAL Subject to Harmless Error Analysis
The California Supreme Court resolved a split among the courts of appeals in holding that a juvenile court's error in the procedure used to appoint a guardian ad litem for a parent in a dependency proceeding is subject to harmless error review. The father in this case, facing an action for termiantion of his parental rights, was appointed a GAL in an informal manner, with the trial court asking him if a "second attorney" would be useful to him, but without much further explanation. The Supreme Court found that the procedure did not comport with due process but found the error harmless because the record clearly established father's incompetency. His parentshad already been appointed conservators of his person under the probate code and he was found mentally incompetent to stand trial in criminal proceedings either shortly before or within days after the guardian ad litem appointment.
In re James F., (California Supreme Court January 15, 2008)
Opinion on web (last visited January 18, 2008 bgf)
January 15, 2008
Case Law Development: Can Delays Caused by Child Protective System Provide Basis for Adoption Outcome?
Justices of the California Court of Appeals disagreed over the effect of a two-year delay in terminating a mother's parental rights and in preventing the child's transfer to Florida to reside with her aunt. The majority opinion provides a detailed summary of the delays and difficulties in the case, summarized thus:
This is a dependency case in which a drug-addicted mother was arrested in California and extradited to Florida. Her nine-month-old daughter, who tested positive for opiates and cocaine because her mother was breastfeeding her while using drugs, was placed with foster parents. At the mother's request, her sister did everything she could to have the child placed with her in Florida, but the Florida child welfare authorities refused to expedite the process and almost a year elapsed before the Florida family obtained a foster care license. Meanwhile and inevitably, the child (now almost three years old and a complete stranger to her Florida family) bonded with her foster parents who are eager to adopt her. The dependency court, placing the child's best interests first, terminated the mother's parental rights and designated the foster parents as the child's prospective adoptive family.
The majority noted that the possibilities for mother's reunification were slim given her three-years sentence for her drug conviction. The majority also noted the aunt's reluctance to adopt the child, her limited financial ability to secure health care for the child, and concerns regarding Florida's child protection system's ability to monitor the case. The fact that the child had lived with the foster family in California for over two years and had never met the aunt was equally significant in the majority's analysis.
The dissent's opinion was sharply critical of an approach that did not give greater weight to parental rights and family-preferences in foster placement. The dissent opined that, "The majority's approach gives far too much weight to the amount of time that a child resides with a foster parent, gives inadequate weight to facts that warranted placement of [the child] with her aunt's family, and ignores the insidious effect on the child welfare system of using the failure of the system itself as justification for the termination of parental rights." On the issue of the Florida system's ability to monitor the aunt's care, the dissent sharply noted, "DFCS cited as an additional ground for denying placement with [aunt] and her family that the Florida child welfare system was not up to the job of monitoring [child's] placement with them. Although as Californians, we are confident that we do things better here than anywhere else, we doubt the citizens of Florida would share that view."
This case is a good read for any student studying the dynamics of the child welfare system.
In Re Lauren Z, California Court of Appeals, January 11, 2008
Opinion online (last visited January 14, 2008 bgf)
January 11, 2008
Case Law Development: Poverty Not A Basis for Termination of Parental Rights
The California Court of Appeals has issused an unpublished opinion that is an excellent case study of the relationship between poverty and termination of parental rights. A presumed father's parental rights had been terminated because he was unable to provide a stable home for his children, even though he had been an involved, caring father and the child protective services had found no harm or threat of harm to them at any time. The court of appeals reversed the termination, holding that the trial court must find that a presumed father is unfit before terminating parental rights. The court commented:
DCFS may not bootstrap the fact that Gerardo was too poor to afford housing, which would not have served as a legitimate ground for removing the boys in the first place, to support findings of detriment, all of which flow directly from the circumstances of Gerardo's poverty and his concomitant willingness to leave his sons in his family's care while he stayed close, maintained familial ties and worked to raise rent money. This is particularly so when DCFS might have assisted Gerardo to obtain affordable housing, but made no effort to do so....It is not up to Gerardo to prove he is a fit parent. Rather, it is up to DCFS to satisfy its constitutional burden to establish, by clear and convincing evidence, that he is not.
In re G.S.R., Cal. App. Second Div. (January 8, 2008)
Opinion online (last visited January 10, 2008 bgf)
August 03, 2007
Case Law Development: New Jersey Determines Standards for Ineffective Assistance of Counsel in TPR Cases
The Supreme Court of New Jersey resolved a number of issues regarding ineffective assistance of counsel in cases involving termination of parental rights. In an opinion that provides a thorough survey of various state approaches to the issues presented, the court held that:
- the right to effective assistance of counsel in New Jersey is both statutory and constitutional
- the standard for reviewing effective assistance of counsel should be the Strickland standard rather than the "fundamentally fair" standard used by some states.
- the procedure for post trial examination of ineffective assistance claims should be by direct appeal rather than in post trial motions in the trial court.
In the Matter of Guardianship of AW and AR, 2007 NJ LEXIS 908 (NJ Sup. Ct. July 25, 2007)
Opinion online (last visited August 2, 2007 bgf)
August 02, 2007
Case Law Development: Reinstating Parental Rights after Termination
The California Court of Appeals has held that an individual who has had her parental rights terminated may not thereafter seek reinstatement of her legal rights through the presumed parenthood statute. The case involved a mother whose parental rights were terminated and her child was adopted by his sibling's father, who thereafter allowed the child contact with the mother. When the state brought a second dependency action against the adoptive father, both the mother and the child moved to allow mother to intervene in the action as a de facto parent.
Mother argued that allowing assertions of presumed parent status when parental rights were previously terminated is proper in a second dependency proceeding against an adoptive parent, because “[f]or many children who were adopted by relatives or family friends, the social, emotional relationship between biological parent and child continues.” Mother’s children wanted to return to her and mother’s social worker supported her position.
The court found that the plain language of the statute, however, would allow a collateral attack on a termination action and concluded that “any exception to the statute for circumstances such as those here would have to come from the Legislature. There is simply no statute that would allow [Mother] to be designated a presumed mother after the termination of her parental rights."
In re Cody B., 2007 Cal. App. LEXIS 1238 (July 27, 2007)
Opinion on line (last visited August 1, 2007 bgf)
January 25, 2007
Case Law Development: Tennessee Court Orders that Daughter Be Returned to Chinese Parents after Seven Years in Custody of Foster Parents
The Tennessee Supreme Court has ruled in the case of Anna Mae He (see Nov. 27, 2005 Family Law Prof post) reversing the termination of the parental rights of the Chinese couple who seven years ago had given their daughter to a couple in Tennessee for foster care. The trial court had predicated the termination on the ground that the parents abandoned A.M.H. by willfully failing to visit her for four months. The Tennessee Supreme Court held that, "because the undisputed evidence shows that there was animosity between the parties and that the parents were actively pursuing custody of A.M.H. through legal proceedings during the four-month period immediately preceding the filing of the petition for termination of parental rights, ...the trial court erred in finding a willful failure to visit..... we conclude that the parents’ consent to transfer custody and guardianship of A.M.H. to the appellees was not made with knowledge of the consequences of the transfer. Therefore, according the parents those superior rights to the custody of their child that constitutional law mandates, only a showing of substantial harm that threatens the child’s welfare may deprive the parents of the care and custody of A.M.H. Although A.M.H. has now been with the appellees for more than seven years, six of those years elapsed after the parents’ first unsuccessful legal filing to regain custody. Evidence that A.M.H. will be harmed from a change in custody because she has lived and bonded with the Bakers during the pendency of the litigation does not constitute the substantial harm required to prevent the parents from regaining custody." The Court remanded for determination of a reunification plan.
December 24, 2006
Case Law Development: The Power of A Christmas Card
Some Christmas cards are more important than others...
The Ohio Court of Appeals held this past week that, even though a father's sole contact with his child during the year was a Christmas card and gift card, this was sufficient "communication" with the child to require the father's consent to the child's step-father's petition to adopt the child.
The court's anaylsis was premised on a strict reading of the statutory requirement:
Our reading of the statute indicates that the legislature intended to adopt an
objective test for analyzing failure of communication ***. The legislature purposely avoided the confusion which would necessarily arise from the subjective analysis and application of terms such as failure to communicate meaningfully, substantially, significantly, or regularly. Instead, the legislature opted for certainty. It is not our function to add to this clear legislative language.
In re K.R.G., 2006 Ohio 6705 (December 18, 2006)
Opinion on the web (last visited December 23, 2006 bgf)
December 20, 2006
Use of Mandamus to Review Trial Court's Refusal to Dismiss Child Protective Actions
Texas statutes provide that, a trial court must dismiss a child protective action filed by the state if the court does not render a final order within one year of the appointment of the state Department as temporary managing conservator of a child (with a maximum extension of 180 days). Two years ago, in a case in which the the dismissal deadline had passed during a trial, the parents filed for and obtained a writ of mandamus with the court of appeals. The Texas Supreme Court stayed that writ (with the child presumably staying in foster care). In a decision this week, the Texas Supreme Court held that accellerated appeal was an adequate remedy to address the trial court's refusal to dismiss the action and it was error for the court of appeals to grant a writ of mandamus. The court qualified its holding and commented on the statute:
We do not hold that a party complaining of a trial court's failure to dismiss a SAPCR within the statutory deadline could never be entitled to mandamus relief, but under the facts of this case, we cannot conclude that an accelerated appeal was not an adequate remedy. Impending transfer of physical possession of the children or a trial court's unreasonable delay in entering a final decree might alter this conclusion, but this record raises neither concern. .... We recognize that in particular cases the statute could work injustice or encourage gamesmanship to push litigation beyond the deadline. We presume the Legislature recognized this also. But the Legislature also recognized that a statutory deadline would expedite the trial of these cases to help provide a modicum of certainty for children whose family situations are subject to the outcomes in these proceedings. It is not the Court's task to choose between competing policies addressed by legislative drafting.
One judge dissented, noting that mandamus has been used in numerous other contexts in which appeal is also available. The dissenting judge questioned whether the parents would even be able to appeal the trial court's termination of their rights at this point. Under these circumstances, the dissent concluded, "The error was clear, and the solution straightforward — an order directing the trial court to dismiss the case. While the overall effect on the legal system of the trial court’s failure to dismiss may not be widespread, the consequence to the family in this case is
deep and potentially irremediable."
November 15, 2006
Case Law Development: A "Better Family" is Insufficient Justification for Termination of Parental Rights
The Texas Court of Appeals reversed a termination of a mother’s parental rights for insufficient evidence that the termination would be in the child’s best interests. The court reviewed the testimony of the CASA volunteer’s observations and criticisms of mother’s parenting, making this a great case to turn into a class discussion problem given the extensive summaries of the testimony and the clear framing of the issue regarding what is minimally acceptable parenting.
The case involved a mother and father whose two young children were removed from the home after a domestic violence incident in which each parent claimed the other was the aggressor. There was also an admission by mother that she had smoked marijuana in front of the children. The court concluded that, while these offending behaviors could form a basis for termination, they were not “egregious enough to warrant a finding that termination is in the children's best interest.”
While there is evidence in the record of Mother's poor parenting skills, poor decision making, and inadequate protection of the children in the past, the evidence is uncontradicted that Mother has done everything that CPS has required of her and more. There is evidence CPS's goal initially was to reunite the family. After Mother and Father divorced, the goal became placing the toddler with Mother and the infant with Father. No significant event occurred between the time CPS planned to return the children to appellant and the time CPS sought termination of Mother's parental rights other than her divorce from Father and Mother's move out of her brother's house and into a sparsely-furnished two-bedroom apartment CPS deemed "unsuitable." The best interest standard does not permit termination merely because a child might be better off living elsewhere. Termination should not be used to merely reallocate children to better and more prosperous parents. The evidence shows Mother has made significant progress, improvements, and changes in her life. The evidence also shows Mother has attended 100 percent of her visits with her children, and she obviously cares for her children.
In the Interest of C.E.K., 2006 Tex. App. LEXIS 9838 (November 14, 2006)
Opinion on the web (last visited November 15, 2006 bgf)
August 11, 2006
Case Law Development: Failure to Object to Absence of Attorney for Child in TPR Actions Precludes Later Appeal on that Basis
In a brief opinion, the Texas Court of Appeals raises yet another issue in the debate over how vigorously courts will enforce the child's right to representation in termination actions. The court upheld the termination of a mother's parental rights, finding that her failure to object to the absence of the child's attorney ad litem at the termination hearing waived her right to raise the issue on appeal. Dissenting Chief Justice Lopez was troubled by this outcome. She pointed out that, while the court did appoint a substitute attorney ad litem upon the failure of the original attorney to appear, the termination hearing was nonetheless heard that same day. Her dissent argues that, "Implicit in the mandatory requirement that an attorney ad litem be appointed is the requirement that the ad litem be present at the hearings in order to represent the child's interest. Just as a court's error in failing to appoint an ad litem can be raised for the first time on appeal... the ad litem's failure to appear at a hearing also should be permitted to be raised for the first time on appeal."
In the Interest of D.W., 2006 Tex. App. LEXIS 7005 (TEx App 4th Dist san antonio August 9, 2006)
Opinion on the web (last visited August 10, 2006 bgf)
Case Law Development: Egregious Abuse Against Child Sufficient Basis to Terminate Parental Rights as to Siblings
The Florida Court of Appeals holds that, under the terms of Florida statutes, egregious abuse directed at one sibling is sufficient, without more, to support termination of parental rights to another sibling. "The statute does not require additional proof to establish a likelihood that an abused child's sibling will also be abused. Furthermore, in some cases, a parent's conduct toward one child may demonstrate a "substantial risk of significant harm" to another child.
T.P. v. Dep't of Children & Family Servs., 2006 Fla. App. LEXIS 13254 (August 9, 2006)
Opinion on the web (last visited August 10, 2006 bgf)
August 02, 2006
Case Law Development: Court May Consider Even Brief Periods of Incarceration in TPR Actions
The Colorado Supreme Court has held that a trial court did not improperly consider the effect of a parent's criminal conviction and resulting incarceration in a termination of parental rights case.
Colorado law provides that parental incarceration alone, is insufficient for termination of parental rights. However, the Colorado code requires a trial court to consider parental incarceration under two circumstances: "(1) if the parent is confined and not eligible for parole for at least six years after the date was adjudicated dependent or neglected; and (2) if the parent is confined and not eligible for parole for at least thirty-six months after the date a child, who is under the age of six when the petition is filed, is adjudicated dependent or neglected."
The question in this case was whether a court may consider periods of incarceration of less than thirty-six months. The Colorado Supreme Court concluded that "Because the primary and controlling issue in termination proceedings is the determination of what will best serve the interests and welfare of the child, a trial court may consider even a relatively short period of parental incarceration as a factor affecting parental fitness and the needs of a child who has been adjudicated dependent or neglected."
Part of the court's rationale for termination of father's rights in this case was that, while eligible, he had been denied parole because the parole board found him a danger to society. Thus father could not comply with the treatment plan, which was premised on his parole. The case provides an interesting comparison with the recent Wisconsin court case (see July 28th Family Law Prof post) addressing a similar issue.
In the interests of K.D., 2006 Colo. LEXIS 622 (July 31, 2006)
Opinion on the web (last visited August 1, 2006 bgf)