VISITATION WITH CHILDREN BY
PARENTS, SIBLINGS AND
FAMILY MEMBERS UNDER
WASHINGTON DEPENDENCIES
Sylvia Glover, J.D.
Sr. Counsel/Assistant Attorney General
CASA Conference/October 20, 2013
An introductory note . . .
• Presenter is a career assistant
attorney general following judicial
clerkship with the Honorable Gerry
Alexander and a brief period in
private practice. Background includes
assignments in DSHS, Torts and
Washington State University Divisions
of the Office of the Attorney General.
Currently representing DSHS,
primarily DCFS in Stevens Cty.
• Opinions expressed in this
presentation are those of the
presenter only. They are not opinions
of the Attorney General or Office of
the Attorney General, official or
otherwise.
Overview
• Statutory Law*
• DSHS/DCFS policy incorporating the law
(including cites to statutes)*
• Case law*
• Ways to bring your concerns to the court
• Hypotheticals
*Handouts available here in hard copy. Email
sylviag@atg.wa.gov for electronic versions.
Some basic principles and thoughts . . .
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Statutes and case law control visitation within
families in dependencies.
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Agency policies interpret the law. In the event of
conflict, the law controls.
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Visits are impacted by interpersonal and financial
realities (transportation, facilities, etc.).
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Parties in dependencies have different roles and
perspectives within the law.
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Reasonable people have different opinions about
these very complicated, multi-faceted issues.
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The decision of the judge/commissioner is the law of
the case unless and until a different decision occurs.
Types of visits between parents and
children (defined per CA Policy 4254)
1
• Unsupervised—often with safety rules
incorporated into court order. Requires
parent to be primary care giver
willing/able to safely care for the child
2
• Monitored—requires another approved
adult to periodically observe and
intervene when needed
3
• Supervised—requires another approved
adult to maintain line of sight and sound
supervision and intervene as needed
Note: Combinations can occur (such as supervised followed by an
unsupervised walk to the park to play and return, for example).
Statutory overview
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RCW 13.34.020: Family unit is a fundamental resource of American life to be nurtured.
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Child has rights to basic nurture, health, safety.
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When child’s rights and legal rights of parent conflict, “rights and safety of the child should
prevail.”
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“In making reasonable efforts under this chapter, the child’s health and safety shall be the
paramount concern.”
RCW 13.34.025: DSHS obligation to coordinate and integrate services, including ensuring that siblings
have regular visits as appropriate. Remedial services include therapeutic services and transportation.
Limitations on the section.
RCW 13.34.065: Shelter care statute. Shelter care order shall set forth terms/conditions for parent,
sibling and family visits.
RCW 13.34.130: Disposition. Visits including sibling.
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Presumption that placement, contact or visits with siblings in the child’s best interests so long as
jurisdiction and/or willingness re: siblings, no “reasonable cause to believe” that contact would
cause jeopardy to health, safety or welfare or efforts to reunite with parents.
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Parental visits cannot be reduced to provide sibling visits.
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Visits with step-sibs may be ordered if above factors met + “child has relationship and is
comfortable” with them.
RCW 13.34.136: Permanency Plan of Care. Visits. Central statute concerning visits.
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Principles concerning visits.
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Visits typically continue up to termination of parental rights, if such occurs.
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Consideration of relationship among siblings as part of termination of parental rights,
encouragement of adoptive parents to maintain sibling contacts, but no requirement to create
same in open communication agreements or authority of court to require as condition of
termination /adoption.
RCW 13.34.180(1)(d)(iii): Note on lack of contact based on incarceration or military service.
RCW 13.34.200: Order Terminating Parental rights—no further rights to visits between the child and
parent. (Any open communication agreement is contractual, not contingent or impacting termination
of parental rights.)
RCW 13.34.136 contains central principles of
visitation and is worth reading in whole.
Visitation is the right of the family, including the child and the parent, in
cases in which visitation is in the best interest of the child. Early, consistent,
and frequent visitation is crucial for maintaining parent-child relationships
and making it possible for parents and children to safely reunify. The
supervising agency or department shall encourage the maximum parent and
child and sibling contact possible, when it is in the best interest of the child,
including regular visitation and participation by the parents in the care of
the child while the child is in placement. Visitation shall not be limited as a
sanction for a parent's failure to comply with court orders or services where
the health, safety, or welfare of the child is not at risk as a result of the
visitation. Visitation may be limited or denied only if the court determines
that such limitation or denial is necessary to protect the child's health,
safety, or welfare. The court and the department or supervising agency
should rely upon community resources, relatives, foster parents, and other
appropriate persons to provide transportation and supervision for visitation
to the extent that such resources are available, and appropriate, and the
child's safety would not be compromised.
Courts interpret statutes and
illuminate the law.
Case law interpretation: In re Tyler L, 150
Wn. App. 800, 208 P.3d 1287 (Wash.App.
Div. 3 2009)
Issue: Did the trial court abuse its discretion
by suspending visits?
Facts:
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GAL moved to suspend visits. DSHS did not join in motion. The mother unsuccessfully requested therapeutic visits
that were recommended by a mental health specialist.
Children (8 and 4) dependent with supervised visits with mother. Return home under dependency unsuccessful.
The mother “attended visits regularly, showing affection and appropriate interaction in general.”
Visits became “problematic, apparently not due to [the mother’s”] conduct.” Evidence:
• Foster parents reported severe physical and emotional responses before and/or after visits with their mother.
• OPD SW observed a two hour visit and saw “nothing that was of cause for great concern.” “[S]he noted that
the ‘fear, anxiety and/or sadness of separation that stems from both anticipating and leaving a visit may cause a
child to act out.’”
• Child mental health specialist recommended future contact between the mother/children occur “in therapeutic
setting to ensure each child’s needs are met and to work on creating a healthy parent/child relationships.”
• Neuropsychologist diagnosed Tyler w/ an attachment disorder and opined that “structure and interventions are
absolutely necessary at this time,” including educating parents and the caregiver on attachment disorders.
• GAL opined re: negative impact citing reaction to the visits (as per foster parent).
Appellate holding in In re Tyler L.: Absent a showing of actual harm, DSHS
was required to provide therapeutic visitation services prior to suspending
visits. Suspension required showing of concrete harm/actual risk.
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Court cited statutory law:
• “During dependency, ‘frequent visitation is crucial for maintaining parent-child relationships
and making it possible for parents and children to safely reunify.’” RCW 13.34.136(2)(b)(ii).
• “’Visitation is the right of the family, including the child and parent, in cases in which
visitation is in the best interest of the child. . . .. Visitation may be limited or denied only if
the court determines that such limitation or denial is necessary to protect the child’s health,
safety, or welfare.”
• DSHS has obligations to coordinate services toward reunification including therapeutic
services for families. RCW 13.34.025(2)(b).
The court determined:
• An express harm finding is not required if the evidence supports the conclusion that visits
are harmful to the child. However, appellate court commented that there was no “harm
finding.”
• “[T]he harm must be ‘an actual risk, not speculation based on reports.’”
• Burden is on the agency to provide that visits pose a “concrete risk” to the children.
• “Something more than opinions based on a single incident is necessary to support a finding
of risk of harm.”
• Under these facts, failing to provide therapeutic visits rather than suspending visits was
an abuse of discretion. Suspending visits was “premature” without exploring option of
therapeutic visits, which would assist to address attachment disorder and stress in child
and help remedy parental deficiencies.
Compare In re T.H., 139 Wn. App. 784, 162 P.3d 1141
(Wash.App. Div. 1 2007), and In re T.L.G., 139 Wn. App. 1, 156
P.3d 674 (Wash.App. Div. 1 2003), where restrictions on contact
upheld.
• Restriction based on quality of the visits and effect on children—clear
risk (danger that can be articulated/concrete)
• Restriction based on parents’ conduct and not a sanction. Example:
Verbal and physical altercation in T.L.G. between parent and DSHS
security guard while other parent holding the child; visitation worker
refused to work with family; parents refused to address these
deficiencies . . .. (Presenter’s note—caution that single instance unlikely
to support suspension unless extreme and/or combined with other
circumstances like parent’s refusal to attempt remedy.)
• Lack of appropriate provider or professionals refuse to provide visit
services given the parental conduct. [Presenter’s note—caution relying
on this without very clear basis . . ..]
• Citation to principle that rights of child to safety prevail over rights of
parents. Courts careful to note: Visits as right of families; maximum
parent-child contact when in the child’s best interests; no use of visits to
sanction failure to comply with court orders or services; and no
limitation or denial of visits without risk showing (now concrete risk per
Tyler L.).
Reasons that do not support restricting visits:
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Punishing the parent for past misconduct that resulted
in damage to the child (but note problem of child truly
unable to tolerate the parent currently due to past
abuse/neglect—e.g., traumatized child whose therapist
indicates will be harmed by contact at this time,
particularly if combined with uncooperative
parent/parent who will not attempt to develop insight)
Mere inconvenience
Parent(s) not doing services
Sanctioning or punishing the parent for behavior not
impacting the visits, especially outside the visits (i.e.,
relapse and related behavioral dysfunction not
resulting in concrete harm to child in visit)
Mischaracterizing parental contact as comparatively
unimportant (to some other commitment of the child
or family)—but note balancing issues (e.g., school and
other commitments pertinent to child’s best interests)
Services that provide alternatives to ceasing contact when visits
appear to be failing (apparently damaging to the child
intuitively but no concrete proof, visits chaotic & frustrating to
parent[s]/child)
1
• Parent instructional services
2
• Family therapy (also
sometimes called
“therapeutic visits”)
3
• Combined (e.g., supervised +
family therapy or family
instructional)
Other options short of indeterminate suspension—
all requiring good faith, creativity and transparency
1
• Agreed interlude/break with
services for parent(s)/child
and visit review date
2
• For older minors: Contact as
arranged via the social
worker and/or therapist
3
• Other individualized
options?
Practice tip: Commit the plan to court order so that all parties are
clearly on the same page and can refer to the agreement.
Reasons that support changes and
can support suspension:
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Detailed/concrete examples of current or
potential concrete physical or emotional harm,
such as CASA observations
Expert opinion: Therapist recommendations
(best if supported by concrete examples and
analysis, regardless of the recommendation)
Child’s therapist
Parent’s provider
Family therapist
Social worker
Reasonable inferences of harm are still
sensible, child protective arguments: A child
need not be injured or irreparably broken
before safeguards established.
Children’s Administration Practices/Procedures Guide,
4254/Parent, Child and Sibling Visits consistent with the law
Parent/child
Sibling
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Efforts to hold within 72 hours of
placement
Explicit adoption of principles of RCW
13.34 re: visits, their importance and right
of family when visits in child’s best
interests
“Visits can be limited or terminated when
the child’s, health, safety and welfare
compromised. The court must approve all
changes to a visit plan if the child is
dependent.”
Adoption of principles of RCW 13.34.136
“Court approval must be obtained to
reassess visit plans when a psychosexual
evaluation has been court ordered.”
Visit plans
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Adopts statutory principles
Provides for visit plans
Provides for sibling visits with parental
visits
Provides for other forms of contact to
be substituted when personal visits not
possible
Continued for minors post-trm unless
approved exception applies
Contacts not limited as a sanction for a
minor’s behavior or incentive to change
the child’s behavior
Visit plans
Ways to raise your concerns—
Motion heard by the
communicating to the
court per notice rules
in your county or (in
parties and court
unusual/compelling/
exigent circumstances)
on shortened time
Informal
communication
among the parties
(verbal or writing)
(often results in
agreed changes in the
case/court order)
CASA report and/or
testimony to the court
in the regular course
of the dependency
(such as at a review
hearing)
Hypothetical 1: What do you recommend for
visits at dependency disposition in this case?
The seven year old child was removed
from the mother’s home. He has had
occasional contact with his dad.
The father interacts very well with the
child, as confirmed by the parent-child
assessment. He has appeared for visits
with the smell of alcohol on his breath
but did not seem impaired. The father
has a history of DUI convictions and
agrees to return to substance abuse
treatment per an D/A eval during the
shelter care period.
The father missed two visits during 60
days of shelter care. He has been late
three other times, stating he had
transportation problems. The father
hasn’t been late or missed anytime in
the last three weeks since the CASA
mentioned to him that this was stressful
to the child.
Hypothetical 2: What do you recommend to coordinate this
complex scenario in accordance with law and the dependent
children’s best interests?
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Family constellation consists of: mother; three dependent children under the age of
ten in foster care/placed six months; their father, with whom the mother continues to
reside intermittently; two children of a different father, ages twelve and thirteen,
residing with the maternal grandparents for the last five years in third party custody.
Parents are using methamphetamine. They have a history of domestic violence but
are attending DV services. Law enforcement was called to their residence by
neighbors last week but no arrest occurred.
The parents attend 70% of supervised visits with mixed conduct at the visits. Recently,
one parent became angry at the visitation supervisor, cursed at her in front of the
children and threw a pillow across the room. The mother is alienated from her parents
with little contact w/ the older sibs for 3 yrs.
The dependent children are being treated for a variety of disorders in individual
counseling, including PTSD. Attachment to the parents was characterized in
assessment as “anxious.” The thirteen year old has been expelled from school for
fighting.
At this week’s visit, the parents talked to the visit supervisor about why she wrote in
her visit notes that the father threatened her. They did not intervene as the children
wrestled/fought.
Hypothetical 3: What recommendations to the court?
Any alternatives before going to court?
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Three year old child dependent for 16 mos. 2:2 family therapy contacts.
The following have occurred during the last three months:
– The mother misses 50% of visits, despite request that she call in two hours prior. She
sometimes misses visits after confirming she will attend.
– Mother invited four relatives to a visit, including one who was a RSO. The child did not
know most of the relatives. The mother became belligerent when the therapist
attempted to counsel them out of the area. The child began to scream as adult
confrontation occurred.
– The mother has promised the child repeatedly that she will be “coming to live with
mommy,” despite counseling by the family therapist to avoid such statements.
– The mother removed the child’s shirt at one visit and drew “tattoos” on her.
– The mother has twice “tweaked” the child on the mouth because the child “sassed”
her and she regularly argues that it should be up to her to discipline in visits. The
family therapist reported that the child cringes when her mother reaches for her face.
– The mother will not bring food to the visits for the child, claiming it’s the job of the
relative placement to feed her and noting that she has no money to buy snacks.
– The child has begun telling the relative caregivers “me no go” before most visits. She
has recently begun hiding under her bed when the relative caregiver looks for her in
the morning. She doesn’t want to go for rides in the car. The relatives characterize the
child as clingy and fearful after visits. Assessment from the therapist is pending.
– The mother reports that the father has recently moved back in with her. He was
defaulted in the dependency. She is casually bringing him to visits.
Hypothetical 4: What do you recommend in
terms of contact and services? Transition?
• Parents of toddler have remedied parental deficiencies that brought
the child into care at birth such that return home does not pose a
manifest danger to the child.
• Toddler has problematic attachment to the parents as well as
physical health challenges
• Current contact schedule is family therapy two hours/week and five
hours of unsupervised visits.
• Parents want immediate return home. They are wary of new
services, state that they will complete current services if necessary to
regain placement of the child and are tired of systems involvement.
They trust the judge/commissioner on their case and refer to the
court order often, do not trust any other participants (SW, CASA,
AAG, their attorneys) and appear to sincerely want what is best for
their child.
Summary
• Visits are central and crucial
to maintaining parent-child
relationships and potential for safe
reunification.
• In rare and necessary cases, visits
may be suspended upon showing of
concrete harm/risk—a concept perhaps not
fully defined. Suspension should not occur
unless other options unsafe/unworkable.
• As participants in child welfare, we can
all bring to the table creative
solutions to visitation issues that work
to the benefit of children and
families and may work to refine the law.
More resources
• Scholarly and law review
articles readily available via online
searches
• Web pages for system participants
(CASA, OPD, DSHS/DCFS/Children’s
Administration, AGO, etc.) readily available via
online searches
• RCW 13.34
http://apps.leg.wa.gov/rcw/Default.aspx?cite=13.34&full=true
•
RCW 26.44
http://apps.leg.wa.gov/rcw/default.aspx?cite=26.44&full=true
• Children’s Administration Practices/
Procedures Guide, 4254/Parent, Child and Sibling Visits
http://www.dshs.wa.gov/ca/pubs/mnl_pnpg/chapter4.asp
QUESTIONS?