Legal day - Life of a Dependency - final 7.29.13 update w AAG notes

The Life of a Dependency
Legal authority – federal
Legal authority - state
Child abuse/neglect defined
Reasonable efforts
Legal authority – Federal
 Child Abuse Prevention and Treatment Act (CAPTA)
Requires states to implement procedures for reporting suspected abuse and neglect,
investigating such reports and taking steps to protect children found to be at risk of
 Title IV of Social Security Act
 Federal law that provides funding for family preservation, foster care and adoption support.
 Requires states receiving funding to provide “reasonable efforts” to keep families together and to
reunite them when children are placed out of the home.
 Requires that a child’s safety be the paramount consideration in child welfare cases.
 Requires states file a termination petition when a child has been in out-of-home care for 15 of the
most recent 22 months, unless compelling reason otherwise.
 Indian Child Welfare Act (ICWA)
 Recognizes the heightened importance of maintaining an Indian child’s connection with his or
her Indian tribe. And “Indian child” is one who is a member of a federally recognized tribe or is
eligible for membership and is the biological child of a tribal member.
 Sets standards for the removal of Indian children, priorities for placement of Indian children,
and requires notice of dependency and termination proceedings to the tribe of an Indian child.
Legal authority – State
 DSHS is the agency required to provide child welfare
services, and shall:
investigate complaints of ca/n
offer child welfare services regarding ca/n to families
or bring the problem to the attention of the courts
have authority to accept custody of children from
parents and juvenile court
monitor out-of-home placements
Legal authority – State (cont.)
 RCW 13.34.020
 The family unit should remain intact unless a child's right to
conditions of basic nurture, health, or safety is jeopardized. Basic
nurture includes the right to a safe, stable, and permanent home
and a speedy resolution of dependency and termination
 When the child’s rights of basic nurture, physical and mental health
are in conflict with the legal rights of the parents, the rights and
safety of the child should prevail.
 Washington State Indian Child Welfare Act (ch. 13.38 RCW)
 Defines “active efforts” and “best interests of the child”
 Requires a good faith effort to determine whether a child is an
Indian child
Child abuse/neglect defined
 "Abuse or neglect" means sexual abuse, sexual exploitation,
or injury of a child by any person under circumstances
which cause harm to the child's health, welfare, or safety,
excluding lawful physical discipline; or the negligent
treatment or maltreatment of a child by a person
responsible for or providing care to the child.
 "Negligent treatment or maltreatment" means an act or a
failure to act, or the cumulative effects of a pattern of
conduct, behavior, or inaction, that evidences a serious
disregard of consequences of such magnitude as to
constitute a clear and present danger to a child's health,
welfare, or safety.
 Information about the child that is collected or retained by the
Department is confidential. It may only be released to individuals or
entities specified in the statute, such as parents or “juvenile justice or
care agencies” (e.g., police, court, prosecuting attorney, defense
attorney, attorney general, any public or private agency with custody of
the child).
 Upon request, the Department is required to provide all records and
information collected or retained by it that pertains to the child to the
child, the child’s parents, or the child’s or parents’ attorneys, except:
 when the release of the information would likely cause severe psychological
or physical harm to the child or his or her parents, or
 if the records relate to voluntary services that the child was legally entitled
to obtain without parental consent.
You may conduct ongoing case planning and
consultation with mandatory reporters, and with
designated representatives of Washington Indian
tribes, if the client information exchanged is pertinent
to cases currently receiving child protective services
Reasonable efforts
Reasonable efforts to prevent removal means offering
services to prevent or eliminate the need for the
removal of the child from the home. These include:
 Reasonably available preservation services, including
housing services, capable of preventing or eliminating
the need for out-of-home placement.
Small Group Discussion (5 mins.):
1) At the time of the filing of the dependency petition,
what reasonable efforts to prevent removal had been
made in this case?
2) In your opinion, was this enough? Why/why not?
3) What might you have done differently?
Report back to large group
Court structure
Dependency petition
Dependency defined
“Indian child” defined
Service of the petition
Requirements for pick-up order
Requirements for protective custody
AAG consult
Court structure
Juvenile Court is a division of Superior Court
Dependency petition
 Initiates court involvement
 Anyone may file
 Must address each parent, guardian, or custodian
 Must address the child’s Indian status
 Must allege that a child meets the legal definition of
“dependent child”
Dependency defined
A dependent child is one who:
 (a) Has been abandoned, or
 (b) has been abused or neglected, or
 (c) has no capable parent or guardian, such that the
child is in circumstances which constitute a danger of
substantial damage to the child's psychological or
physical development
“Indian child” defined
 Under ICWA, an “Indian child” is someone under 18 years
of age who:
 Is a member of a federally recognized tribe OR
 Is eligible for membership in a federally recognized tribe and
whose parents are tribal members
 Department policy is to apply a broader definition of
“Indian child” that includes children with Indian heritage,
even if they don’t meet the definition above. The
Department applies its ICW policies to these children for
case-planning purposes, but this is not a legal or court
Service of the petition
1) Personal service
 15 court days prior to fact-finding
 only exception – out-of-state parent
2) Via certified mail
 received 15 days prior to fact-finding
3) Publication
 following due diligence
 1st date of publication must be 25 days prior to factfinding
Children may be taken into custody by:
 court order (pick-up order)
 law enforcement protective custody (PC)
 Agreement of the parent (VPA)
 Hospital administrator or physician (hospital hold)
Requirements for pick-up order
 A dependency petition and sworn statement
supporting the pick-up order have been filed
 There are reasonable grounds to believe the child’s
health, safety, or welfare will be seriously endangered
if not taken into custody
 There are reasonable grounds to believe the child is
Requirements for protective
There is probable cause to believe that the child is
abused or neglected
 The child would be injured
 The child could not be taken into custody if it were
necessary to first obtain a court order
AAG Consult
 You can consult with your AAG to discuss whether your case is
legally sufficient, and whether you have sufficient facts to
support removal of the child.
 When you do so, please keep in mind the following:
 The AGO is an independent state agency.
 The AGO does not represent individual social workers, but instead
represents DSHS and the people of the State of Washington.
 Your AAG can advise you regarding legal sufficiency, but cannot
make policy decisions for you.
 Your communications with your AAG are protected by attorneyclient privilege, but you can waive this by telling people outside your
agency about our privileged conversations.
 If you are considering a settlement of your case, you need to discuss
this with your AAG before you agree.
AAG Consult Demonstration (10 mins.)
 What are each parent’s parental deficiencies?
 Were reasonable efforts made to prevent removal, and
if so how as to each parent?
 Would you request removal of each child, and if so
how would you support that decision?
 What is the current status of custody as to each child,
and how does this affect the risk of harm posed by
each of the parents?
Legal standard
SW obligations before hearing
In the courtroom
Court’s considerations
Legal standard
Court may order out-of-home placement if it finds
reasonable cause to believe that:
 Services were offered to prevent or eliminate need for
removal, AND
 No parent or guardian is available to care for the child
 Release of the child to the parent presents a serious
threat of substantial harm to the child
Initial shelter care hearing must occur within 72 hours
of placement, excluding Saturdays, Sunday and
SW obligations before hearing
 Make reasonable efforts to provide notice to parents of
shelter care hearing
 Notify tribe, if Indian child under ICWA
 Prepare discovery
 Perform due diligence to locate a relative placement
 Attempt to facilitate visitation
In the courtroom
 Key players:
 Judge/Commissioner
 Court Reporter
 Judicial Assistant/Bailiff
 Social Worker
 Parent
 Parent Attorney
 Other interested people:
 Tribal representative
 Child
 Child attorney
 Foster parents
 Relatives
 Friends and family
 Service providers
 The Department must provide the parent or parent’s
attorney with a redacted copy of records pertaining to
the child that are retained by the Department at a
reasonable time before the shelter care hearing.
 Provide an unredacted copy to your AAG, as well.
Court’s considerations
Court will appoint attorneys to indigent parents
Court will appoint GAL / CASA
Court may set case conference
Reasonable efforts to prevent the need for removal
Placement, including:
 Appropriate relatives?
 Suitable person?
 Can child safely remain in the home if non-offending parent
obtains a protective order?
 Visitation – parent and sibling
 For children in grades 6 through 12, the Department will
identify an Educational Liaison.
Small group discussion (10 mins.)
1) How would you explain imminent risk of harm to
Serena if she were released to either parent’s care at
shelter care?
2) How would you explain imminent risk of harm to
Zoe if she were released to either parent’s care at
shelter care?
3) How can you put your best foot forward in court so
that you are more credible?
Report back to large group
Legal standard
“Indian” child
Evidence rules
Working with your AAG
Dispositional hearing
Legal standard
 Whether the child meets the definition of a
“dependent child” by a preponderance of the evidence.
 Remember, a dependent child is one who:
 (a) Has been abandoned, or
 (b) has been abused or neglected, or
 (c) has no capable parent or guardian, such that the
child is in circumstances which constitute a danger of
substantial damage to the child's psychological or
physical development.
If “Indian” Child
 The Department is required to notify the child’s tribe or tribes of the
dependency action by certified mail, return receipt requested and by
use of a mandatory Indian child welfare act notice.
 In involuntary foster care and termination of parental rights
proceedings involving an Indian child the following are required –
 Proof that active efforts have been made to provide remedial
services and rehabilitative programs designed to prevent the
breakup of the Indian family and that these efforts have proved
 A determination, supported by testimony of qualified expert
witnesses, that the continued custody of the child by the parent is
likely to result in serious emotional or physical damage to the child.
• These 2 elements need to be proved by clear, cogent and convincing
 Hearing must be held within 75 days of petition being
filed unless exceptional circumstances exist.
 Courts interpret “exceptional circumstances”
Evidence rules
 Evidence rules apply in the dependency fact-finding
 Hearsay is not admissible.
 Impact on your case:
 Witnesses who heard parents make admissions may
have to testify.
 Witnesses who experienced or observed abuse or neglect
firsthand may have to testify, unless exception applies.
 May need to call providers, neighbors, family members,
 Where an agreement can be obtained that protects the
safety of the child and is legally sufficient based on the
evidence, it will be pursued.
 An agreed order is a settlement. Agreed dependency
orders are subject to the approval of the court, and the
court must find that the parent knowingly and
voluntarily entered into the agreement and
understands its consequences.
 (b) versus (c) considerations
Working with your AAG
When preparing for a dependency fact-finding trial,
you may want to:
 Create a timeline of the case and send a copy to your
AAG (1-2 pgs.).
 Request the AAG send you a list of questions you will be
expected to answer.
 Send the AAG a proposed witness list identifying the
name, address, phone number, role in the case, and
summary of the expected testimony.
 Dress appropriately
 Be truthful…even if it hurts
 Be prepared to testify as
the expert
 Take your time
 Keep in mind your
 Speak in plain language
 Answer the question asked
 Stick to your guns!
x Argue
x Get mad
x Assume anything
x Answer a question with a
x Equivocate
x Give vague answers
x Speculate
x Agree to inaccurate
Dispositional hearing
 May be delayed up to 14 days after fact-finding for
good cause
 Court will enter orders regarding:
 Placement
 Visits (with parents and siblings)
 Services
 Evidence rules need not apply at dispositional hearing
To order out-of-home placement, the court must find
that reasonable efforts have been made to prevent
removal from the home, AND
 There is no parent willing or available to care for the
 clear, cogent, and convincing evidence supports a
finding that a manifest danger exists that the child will
suffer serious abuse or neglect if not removed
Placement (cont.)
A child placed out of a parent’s home must be
 with a relative willing and able to care for the child, with
whom the child has a relationship and is comfortable
 with a suitable person with a significant relationship
with the child
 in a licensed foster home
 Visitation with parents and siblings is a right.
 It is presumed that visitation is in the child’s best
 Visits may not be conditioned on compliance with
services or cooperation with DSHS.
 Order must set out clear requirements for compliance and progress, and
timeline for completion.
 If the parent is unable to pay, DSHS is required to provide funds for remedial
services to the extent funding is available to it for such specific services.
 Remedial services are time-limited family reunification services, including:
 individual, group, and family counseling;
 substance abuse treatment services;
 mental health services;
 assistance to address domestic violence;
 services designed to provide temporary child care and therapeutic services for families;
 and transportation to or from any of the above services and activities.
 If court-ordered remedial services are unavailable for any reason, including
lack of funding, lack of services, or language barriers, DSHS is required to
promptly notify the court that the parent is unable to engage in the treatment
due to the inability to access these services.
Review Social Worker testimony:
pgs. 519-21
pg. 533 lines 7-19
pgs. 534-38
pg. 548 line 12-24
pg. 552 line 15 – pg. 553 line 11
pg. 555
pg. 559 line 20 – pg. 560 line 2
pg. 563
pg. 564 – pg. 565 line 1
pg. 574
Activity (cont.)
Review Detective Testimony:
pgs. 24-28
pg. 29
pg 33 line 25 – pg. 34 line 21
pg. 37 – pg. 40 line 14
pg. 49 line 16 – pg. 50 line 15
pgs. 60-66
pg. 83 line 16 – pg. 85 line 15
Activity (cont.)
Large group discussion:
1) What hurt the credibility of the witnesses?
2) What helped it?
3) Whose testimony was more effective, and why?
Issues before the court
Permanent plans
Return home
Dependency guardianship
Permanent legal custody
 1st review must be held within 90 days of dispositional
hearing or 6 months from date of placement,
whichever is sooner.
 Subsequent review hearings are held every six months.
 The first permanency planning hearing must be held 9
– 12 months from the date of placement, and then held
at least every 12 months.
Issues before the court
 Services
 Have reasonable services been offered to facilitate
 Have all parties complied with the service plan?
 Has progress been made toward correcting parental
 Are additional services necessary?
 Ongoing active efforts if Indian child?
 Placement
 Is the placement appropriate?
 Is there a continuing need for out-of-home placement?
 Visitation
 Has the child visited with parents and had contact or visits
with siblings, and if not why not?
 Visitation with parents may only be limited or
suspended if the court finds that it is detrimental to
the child’s health or welfare.
 If you are requesting that the court limit or suspend a
parent’s visits, you must be able to answer this
 How is the current visitation plan detrimental to the
Permanent plans
 Return home
 Adoption
 Guardianship
 Permanent legal custody
 Long-term relative or foster care with written
 Responsible living skills program
 Emancipation
Return home
 Court must find parent is compliant with case plan,
court orders, and treatment to order a child returned
 Parent must maintain compliance with case plan and
court orders to keep child in the home.
 Child must be returned home under court supervision
for 6 months prior to dismissal of the dependency.
 Prior to adoption all parents’ rights must be terminated or
 A termination petition starts a separate but related action
from the dependency.
Title 13 Guardianship
 Court must make same findings as in termination of
parental rights by a preponderance of the evidence
 Court must find that guardianship, rather than
termination of parental rights or continued efforts to
reunify, is in the child’s best interest
 Dependency dismissed when Title 13 Guardianship is
Permanent legal custody
 A separate action
 State is not a party to the action
 Parties must hire their own lawyer
 No right to counsel
 Dependency dismissed once custody order is entered
 Limited financial support to family
Extended Foster Care
 Youth who turn 18 while in foster care can chose to remain dependent
who are:
 Pursuing their high school diploma or a GED;
 Going to college or are in a vocational training program;
 Engaged in an activity designed to remove barriers to employment (new
category added in 2013)
 If a youth’s dependency is dismissed at age 18, a youth can seek EFC
services before age 19 by way of a VPA or filing a dependency petition.
 Youth may only do so once.
 A “Non Minor Dependent” is a youth between the ages of 18 and 21
who is receiving EFC services: court appointed attorney; case
management services; 6 month review hearings; permanency planning
Small group discussion (15 mins.):
 At the 2nd review hearing / 1st permanency
planning hearing, what would you recommend to
the court and how would you support your
recommendations to the court regarding:
Placement of each child
2) Visitation plan for each child
3) Service plan for each parent
4) Permanent plan for each child
Report back to the large group
Activity (cont.)
Demonstration of SW testimony at a review hearing
Lessons learned?
Legal standard
Good cause exception
ICWA – Notice
ICWA – Legal standard
Termination as to both parents
Common issues at trial
Legal standard
 State must prove by clear, cogent and convincing evidence that:
 The child is dependent
 A disposition plan has been entered
 The child has been removed from the parent’s custody pursuant to
an order of dependency for 6 months
 All services ordered and all necessary services reasonably available have
been offered or provided
 Little likelihood that parent will remedy parental deficiencies in the
near future
 Continuation of parent-child relationship diminishes child’s prospects
for early integration into a permanent and stable home
 Court must find that the parent is currently unfit.
 Court must also find by a preponderance of the evidence that
termination of parental rights is in the child’s best interest.
 Federal law – DSHS must file a termination petition if
child has been placed out of the home for 15 of the last
22 months, absent a compelling reason otherwise.
 State law – Juvenile court must order the filing of a
termination petition if a child has been placed out of
the home for 15 of the last 22 months since the date of
the filing of the petition, unless good cause is found.
Good Cause Exception
 Good cause exception includes but is not limited to:
 Child is being cared for by a relative;
 The Department has not provided to the parents such services as the court and the
department have deemed necessary for the child's safe return home;
The Department has documented a compelling reason for determining that
termination of parental rights would not be in the child's best interests;
Where a parent is in a dependency treatment court or in a long-term substance
abuse or dual diagnosis treatment program and is in compliance with the
A parent files a declaration under penalty of perjury stating the parent’s financial
inability to pay for the court-ordered services, and also declares that the
Department was unwilling or unable to pay for the services necessary for the
child’s safe return home.
The parent is incarcerated or parent’s prior incarceration is a significant factor in
the child’s length of stay, the parent maintains a meaningful role in the child’s life,
and the Dept. has not documented another reason why it is otherwise appropriate
to file a termination petition.
ICWA - Notice
In a termination proceeding where the court knows or
has reason to know that an Indian child is involved,
the Department must:
 Notify the child’s tribe, and if it cannot be determined
notify the BIA, by registered mail.
 Notice must allow BIA 15 days after receipt to notify the
child’s tribe.
ICWA – Legal standard
 Court must also find beyond a reasonable doubt that the
continued custody of the child by the parent or Indian custodian
is likely to result in serious emotional or physical damage to the
 This finding must be supported by testimony of a qualified expert
witnesses. Washington State ICWA lists who may be such a
witness, but it cannot be the assigned social worker.
 Department must also prove that it made active efforts to
provide remedial services and prevent the break-up of the Indian
family, and that these efforts were unsuccessful. Washington
State ICWA defines “active efforts” as a showing that the
Department actively worked with the parent to engage him or
her in remedial services and rehabilitation programs.
Termination as to both parents
 Department policy is not to terminate parental rights
as to one parent only.
 Why?
 Termination of parental rights eliminates the child’s
rights to inheritance, the child’s relationship with
extended family, and entitlement to further child
 It should only be pursued with the goal of achieving
permanence through adoption.
Common issues at trial
 Were all court-ordered services offered to the parent?
 Were all reasonably available necessary services offered to
the parent?
Given the parent’s compliance with some services, is there
little likelihood that the parent will remedy the parental
deficiencies in the near future?
What is the near future for this child?
How does continuation of the parent-child relationship
diminish the child’s prospects for integration into a
permanent home?
Why is termination of parental rights in this child’s best
Small group discussion (10 mins.):
1) What element/s of termination will be more difficult
to prove in each child’s case, and why?
2) How could you address those issues before or during
3) How would your case change, if at all, if you received
notice that Zoe is an Indian child under ICWA?
Report back to large group
Appeals – Court of Appeals
Appeals – Supreme Court
Humanistic litigation
Goal of dependency
Appeals – Court of Appeals
 What is the Court of Appeals?
 A court that hears appeals from decisions of the Superior Court. Its cases
are decided “on the record.” If it publishes a decision, the decision becomes
 What happens to our cases when a decision is pending at the Court of
 Consult with your assigned AAG. When a termination is on appeal, you
may not move to adoption, depending on your local practice and
compliance with state-wide policy.
 RAP 18.3(k) requires the Department to provide notice of intent to deliver
consent to adoption.
• How long does it take to get a decision in a case before the Court of
 It depends on the issue on appeal. Expect it to take up to a year, and in
some cases more.
Appeals – Supreme Court
 What is the Supreme Court?
 The Supreme Court is the final court of appeals in our state. It
handles appeals from the Court of Appeals. Its cases are decided
“on the record.” Its decisions become law.
 When does the Supreme Court take our cases?
 It is not required to take our cases. It takes them when an issue of
statewide importance is involved.
 It takes only 140 cases total per year.
 How long does it take to get a decision in a case before the
Supreme Court?
 A long time. You can be looking at more than a year.
 What is a tort? It is a civil wrong for which the law may award monetary damages.
 Negligence – The failure to exercise ordinary care, doing some act which a reasonably
careful person would not have done, which then causes harm to a person that results
in damages.
 Intentional torts
 Civil rights violation – Children have a constitutional right to be free from an
unreasonable risk of harm and to have their basic needs met. Failure to ensure that
these rights are protected could be a civil rights violation.
 What if a SW is sued?
 State employees are defended by the AG’s Office and all costs of representation and
resolution are paid by the State when the acts or omissions of the employee were in
“good faith” and within their scope of employment or official duties.
 Representation can be denied if the employee engaged in misconduct or personal
Bottom line – Solid, defensible mistakes will occur. Apply critical thinking at key decision
points. Review all necessary documents before making your decisions. Document your
decision-making process. Be prepared to articulate and defend your decision.
 How can a person be sanctioned by the court?
 The written court order includes the court’s ruling
regarding what action should be taken in a case. A
person can be sanctioned for violating or failing to
comply with the court order.
 What happens if a person is sanctioned?
 Contempt of court: financial sanctions, detention, etc.
 Who may be sanctioned?
 Sanctions may be imposed on a non-compliant person,
including a child, Social Worker, or parent.
Humanistic Litigation
 Adversarial system
 Encourage getting parents invested early
 Avoid child witnesses, when possible
 Difficult questions will be asked
 Settlement is generally better than a contested hearing
 Dealing with most vulnerable population – avoid
Goals of dependency
 Protect the safety and welfare of the child.
 Reunify the child with a capable parent.
 Where reunification cannot or does not occur, ensure
stability in the child’s life and permanency as soon as
For your hard work
For your patience
For your professionalism
For protecting children
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