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ELECTRONIC RESOURCE 1a: COMPENDIUM OF STATEAND FEDERAL CHILD WELFARE LAW

1. ABUSE AND NEGLECT COLORADO STATE STATUTES

Table of Contents

Reporting Abuse and Neglect 2

Temporary Custody Hearing 7

Dependency and Neglect Petition 24

Dependency and Neglect Adjudication 29

Disposition 36

Involuntary Placement Review 45

Voluntary Placement Review 49

Permanency Hearing 52

Criteria for Termination 59

Termination Procedures 65

Post-Termination Review Hearing 71

1 Reporting Abuse and Neglect: Mandatory reporters must make verbal and written reports of suspected child abuse or neglect. Dep’t of Human Services investigates these reports. The court may order access to the child, a search warrant for the child, or a Dependency and Neglect petition to be filed. Report subjects may request expungement.

 Abuse and Neglect, defined: Child abuse or neglect includes acts that threaten the health or welfare of a child. This includes: o Non-accidental skin bruising, bleeding, malnutrition, failure to thrive, burns, fractures of any bone, subdural hematoma, soft tissue swelling, or death; o Any case in which a child is subject to unlawful sexual behavior; o The child’s parent, guardian, or custodian failing to provide adequate food, clothing, education, shelter, medical care, or supervision that a prudent parent would take; o The child being subject to emotional abuse that substantially impairs or places at risk the child’s intellectual or psychological functioning or development; o When the child’s parent, guardian, or custodian has abandoned the child or allowed another to mistreat or abuse the child; o When the child’s environment is injurious; o When the child is homeless, without proper care, or not domiciled with the parent, guardian, or legal custodian through no fault of such parent, guardian or legal custodian; o When the child has run away from home or is otherwise beyond the control of the parent, guardian, or legal custodian; o When a parent, guardian, or legal custodian has subjected another child or children to an identifiable pattern of habitual abuse, and that parent, guardian, or legal custodian has been the respondent in another proceeding under the Children’s Code, or a court has determined that such abuse or neglect has caused the death of another child; and the pattern of abuse poses a current threat to a child; o When the parent interferes with court-ordered medical treatment of a child; o Manufacture or attempted manufacture of an illegal drug in the presence of a child, or on the premises where a child is found, or where a child resides; or o Where a child tests positive at birth for either a schedule I or a schedule II controlled substance, unless the child tests positive for a schedule II controlled substance as a result of the mother’s lawful intake of such substances as prescribed. C.R.S. § 16-22-102(9); C.R.S. § 19-3-102(1) and (2); C.R.S. § 19-1-103(1)(a).  Mandatory Reporters: o Anyone may report child abuse and neglect. o However, some professionals are required to make reports if they have reasonable cause to know or suspect that a child has been abused or neglected. They must also report if they observe the child subjected to conditions that would reasonably result in abuse or neglect.

2 o The following are mandatory reporters under the statute: . Physician; . Physician in training; . Hospital personnel who admit, care for, or treat patients; . Surgeon; . Child health associate; . Christian Science practitioner; . Coroner; . Medical examiner; . Public or private school official or employee; . Dentist; . Registered nurse; . Mental health professional; . Osteopath; . Licensed practical nurse; . Dental hygienist; . Optometrist; . Social worker; . Physical therapist; . Chiropractor; . Child care worker; . Commercial film and photograph processor; . Chiropodist; . Psychologist; . Veterinarian; . Pharmacist; . Podiatrist; . Victim advocate; . Peace officer; . Firefighter; . Marriage and family therapist; . Licensed professional counselor; . Unlicensed psychotherapist; . Clergy member; . Anyone who works for the state Department of Human Services; . Registered dietician; . Child and family investigator; . Juvenile parole or probation officer; . Agent of state bureau of animal protection; . Animal control officer  Reporting Procedures: Reports of child abuse or neglect are to be immediately made to county Dep’t of Human Services or local law enforcement, promptly followed by a written report. C.R.S. § 19-3-307(1) & (2). This report is admissible in Dependency and

3 Neglect proceedings. However, it is subject to confidentiality requirements. Dep’t of Human Services gives copies of all reports to the district attorney and to local law enforcement. C.R.S. § 19-3-307(3) and (4).  Investigation: Dep’t of Human Services must begin investigating immediately after receiving the report. Protecting the child and, if appropriate, preserving the family are the immediate concerns. C.R.S. § 19-3-308(1).  Post-Investigation: o Dep’t of Human Services determines if the report is confirmed or unfounded. It is confirmed if supported by a preponderance of the evidence. C.R.S. § 19-1-103(27). o Confirmed reports are forwarded to the state Department of Human Services within sixty days. C.R.S. § 19-3-307(1); C.R.S. § 19-3-308 (5.3). o Dep’t of Human Services may be liable for not investigating allegations of abuse when recommending placement with an abusive family member. Currier v. Doran, 242 F.3d 905 (10th Cir. 2001). o When investigating any report of child abuse or neglect, Dep’t of Human Services must use the Safety and Risk Assessment and Family Needs Assessment of the Colorado Assessment Continuum. This instrument provides objective criteria for making any recommendations regarding whether a child is at risk. C.R.S. § 19-3-308(4) and (5.5). o Dep’t of Human Services may decide to file a Dependency and Neglect petition. It may also seek a court order to take the child into protective custody. C.R.S. § 19-3-308(4). o If Dep’t of Human Services files a petition, it must notify the child’s guardian ad litem. The notification must be in writing and include: . The reasons for initiating the petition; . Suggested treatment; and . Suggested disposition.

C.R.S. § 19-3-308(10).

o The county department and a person believed to be responsible for first time minor abuse or neglect of a child may agree to defer the filing of a confirmed report of child abuse or neglect with the state department as required by C.R.S. § 19-3-307. The parties may enter into a safety agreement when certain circumstances enumerated in the statute exist. C.R.S. § 19-3-309.5. o Dep’t of Human Services must provide reasonable efforts to prevent or eliminate the need for out-of-home placement of a child. C.R.S. § 19-1-103(89); C.R.S. § 19-3-208. o Dep’t of Human Services must develop, with the family, an individual case plan for all abused and neglected children and families of such children in each case opened for service. C.R.S. § 19-3-209.  Temporary Custody: o Dep’t of Human Services may seek a court order for custody of a child at any time of the day or night. C.R.S. § 19-3-312(1); C.R.S. § 19-3-405.

4 o If custody is granted by the court, the parent or guardian is entitled to a hearing within 72 hours, excluding weekends and holidays. C.R.S. § 19-3-403(3.5). o Law enforcement may take a child into custody without a court order when the child is abandoned, lost, seriously endangered or seriously endangers others, and immediate removal appears necessary to protect the child or to protect others; or when there are grounds to believe the child has run away from home and the parent, guardian, or legal custodian has not made a runaway report. C.R.S. § 19-3-401. o If this is done, and the child is placed in a temporary facility not operated by Dep’t of Human Services, law enforcement must promptly notify the court. The parent or guardian is entitled to a hearing on this decision within 48 hours, excluding weekends and holidays. C.R.S. § 19-3-403(2). o A child may not be placed in emergency placement with a person with specified criminal history, such as child abuse, a crime of violence, unlawful sexual behavior, felony domestic violence, felony assault, felony drug offense, violation of a protective order, or homicide. C.R.S. § 19-3-406(4). o A newborn child who is not in a hospital setting may not be taken into custody for more than twenty-four hours without a court order. The court order for custody must include findings that an emergency situation exists, and that the newborn child is seriously endangered. C.R.S. § 19-3-401(3)(a). o A newborn child who is in a hospital setting may not be taken into temporary protective custody without a court order. The court order for custody must include findings that an emergency situation exists, and that the newborn child is seriously endangered. C.R.S. § 19-3-401(3)(b). o However, the court order is not required when : . The newborn child is identified by a physician, registered nurse, licensed practical nurse, or physician’s assistant engaged in the admission, care, or treatment of patients as being affected by substance abuse, or demonstrating withdrawal symptoms resulting from prenatal drug exposure; or . When both of the newborn child’s birth parents, or the only identifiable birth parent, have been determined by a physician, registered nurse, or qualified mental health professional to be in need of custody, treatment, and evaluation of mental illness or grave disability; or . When the newborn child is subject to an environment exposing the child to a lab for manufacturing controlled substances.

C.R.S. § 19-3-401(3)(c).

 Court Action: o If there is suspected child abuse or neglect, anyone may request juvenile court jurisdiction. The court must then order an immediate investigation to determine if the child needs court protection. The investigation may be made by Dep’t of

5 Human Services, the probation department, or any other agency designated by the court. C.R.S. § 19-3-501. o Generally, Dep’t of Human Services must notify the court only if the report is serious enough for the court to order an investigation or the filing of a Dependency and Neglect petition. Dep’t of Human Services usually does not notify the court if it handles the case through voluntary services to the family. C.R.S. § 19-3-309.5; C.R.S. § 19-3-312(1). o On the basis of a report of child abuse or neglect made by a mandated reporter, the court may authorize or may order the filing of a petition in dependency and neglect. C.R.S. § 19-3-501(2). o The court may also authorize an informal adjustment, without a petition, provided: . The child and his or her parents, guardian, or other legal custodian are advised of their rights, including the right to counsel, at every stage of the proceedings; . The facts are admitted and establish prima facie jurisdiction (except that such admission may not be used in evidence if a petition is filed); and . Written consent is obtained from the parents, guardian, or other legal custodian and also from the child (if the child is old enough).

C.R.S. § 19-3-501(1)(c). o If the child’s parent, guardian, or custodian cannot be located, the court may, at any time of the day or night, authorize or consent to emergency medical treatment. C.R.S. § 19-3-403(6). o If the investigator is denied access to the child, the juvenile court may, upon a showing of good cause, order the responsible person to allow access to the child. A responsible person who refuses to comply with the order may be held in contempt after a show cause hearing. The person may be jailed without bond until the child is produced or the person is proved unable to help give information about the child. C.R.S. § 19-3-308(3). o The Fifth Amendment privilege against self-incrimination may not be used to circumvent a court’s order directing a parent to produce a child to authorities. Baltimore v. Bouknight, 493 U.S. 549 (1990). o If the child must be found or taken into custody, the court may issue a search warrant. The request must be in writing and supported by affidavit. Probable cause must be shown. C.R.S. § 19-1-112(1) and (3). o The warrant must include: . Child’s name or description; . Place to be searched; . Grounds for probable cause; and . Names of those who gave supporting affidavits

6 C.R.S. § 19-1-112(2). o The person in possession of the place to be searched must be served. Service must include the warrant, application and supporting affidavits. C.R.S. § 19-1- 112(7). o They should be served in the daytime, but the court may order them served at night if necessary. C.R.S. § 19-1-112(6).

7 Temporary Custody Hearing: A child may be taken into temporary custody without a court order, with an ex parte protective order, or after a temporary custody hearing. The court must determine whether county Dep’t of Human Services made reasonable efforts to prevent the placement.

 Emergency Custody: o A law enforcement officer may remove a child without a court order if the child is in immediate danger, such as if the child is: . Abandoned; . Lost; . Seriously endangered; . A runaway; . With a parent under an arrest warrant for violating a custody order. C.R.S. § 19-3-401(1).

o A law enforcement officer, upon the recommendation of Dep’t of Human Services, a physician, a nurse, or a physician’s assistant, may detain a newborn child in hospital while an order of the court is being obtained. C.R.S. § 19-3-401(3) (b). o Court orders for custody of a newborn child are not required if: . The newborn child is affected by substance abuse or demonstrates withdrawal symptoms; . The newborn child’s only identifiable birth parent or parents have been determined by a physician, registered nurse, or qualified mental health professional to be mentally ill or gravely disabled; or . The newborn child is subject to an environment that will expose the child to a laboratory for manufacturing illegal drugs.

C.R.S. § 19-3-401(3)(c).

o The law enforcement officer must release the child to the parent or other responsible adult unless placement out of the home is necessary to the child’s best interests and welfare. The judge may condition the child’s release or require a written promise to bring the child to court. C.R.S. § 19-3-402(2). o Dep’t of Human Services may remove a child only with a court order. The court may issue an ex parte protective custody order, if continuing the child in the home or in the responsible person’s custody presents a danger to the child’s life or health in the foreseeable future. Dep’t of Human Services, law enforcement, hospital administrators and physicians who has a child suspected of being neglected or abused may also request such an order. The order may be written or verbal and it expires in three court days. Dep’t of Human Services must be notified to begin dependency and neglect (Dependency and Neglect) proceedings. C.R.S. § 19-3-405.

8 o The court may issue orders to protect the child without removal. An emergency protective order may restrain a person from threatening, molesting, injuring or contacting the child or from interfering with the child’s supervision. The order expires in 72 hours, excluding Saturdays, Sunday, and legal holidays. C.R.S. § 19-3- 405(2)(b) and (4). o The court may order emergency caretaker services into the home. This option avoids a foster care placement. The emergency caretaker remains until a parent, guardian or legal custodian enters the home and expresses a willingness and apparent ability to resume charge of the child. The order expires in 72 hours, excluding Saturdays, Sundays, and legal holidays. (Emergency caregiver services are not available in every county.) C.R.S. § 19-3-404. o Any law enforcement officer, Dep’t of Human Services employee or other person authorized by the court or statute to take or retain custody of a child has good faith immunity from civil or criminal liability. Immunity also extends to transporting the child and releasing the child from custody. Good faith is presumed. C.R.S. § 19-3-403(8).  Temporary Custody Hearing: o After removal, the court must hold a temporary custody hearing (also called a shelter or detention hearing, or preliminary protective proceeding) to determine further custody of the child, or whether the emergency protection order should continue. Time frames for holding a custody hearing depend upon the child’s placement and authority for placement: . If the child is in a juvenile detention facility, the court must hold a hearing within twenty-four hours of placement (excluding Saturdays, Sundays, and legal holidays). . If the child was picked up by law enforcement and placed in a shelter facility or temporary holding facility not operated by Dep’t of Human Services, the court must hold a hearing within forty-eight hours of placement (excluding Saturdays, Sunday, and legal holidays). C.R.S. § 19-3- 403(2) . If the court entered an emergency protective order, or if the child was placed with Dep’t of Human Services, the court must hold a hearing within seventy-two hours of placement (excluding Saturdays, Sunday, and legal holidays). C.R.S. § 19-3-403(3.5) . Courts may not enter nunc pro tunc orders. C.R.S. § 19-1-115(c)(6.7) o An order related to out of home placement is effective on the date that the order is signed by the court. A court is not to use the words “nunc pro tunc” in its written order, but is to use the phrase “the effective date of this order is.” C.R.S. § 19-1-115)(c)(6.7) o Dep’t of Human Services’ failure to request a timely custody hearing does not deprive the court of jurisdiction. P.F.M. v. District Court, 184 Colo. 393, 520 P.2d 742 (1974) o Temporary custody options include:

9 . In evaluating whether the court should grant, transfer or continue temporary custody with Dep’t of Human Services, the court must determine whether it is satisfied from the information presented at the hearing that such custody is appropriate and in the child’s best interests. W.H. v. Juvenile Court, 735 P.2d 191 (Colo. 1987) . The court should not apply the Dependency and Neglect adjudication or disposition standard at the temporary custody hearing. In W.H. v. Juvenile Court, a nine-year-old boy had run away from home. When police found him, he had extensive bruising on his arm, which he stated was caused by his stepfather hitting him repeatedly with a plastic bat. At the temporary custody hearing, the trial court held the incident did not meet the statutory Dependency and Neglect definitions. The Colorado Supreme Court reversed and remanded, because the court should have evaluated whether placement was in the child’s best interests. C.R.S. §19-3-403(3.6)(a) (V) . The court may also consider and give preference to giving temporary custody to a child’s relative who is appropriate, capable, willing and available for care if it is in the best interests of the child and if the court finds there is no suitable birth or adoptive parent available, with due diligence being exercised in attempting to locate any such parent. C.R.S. §19-3-403(3.6)(a)(V) . The court may enter any other appropriate orders. C.R.S. §19-3-403(3.6)(a)(V)

o At the temporary custody hearing, the court may consider any information having probative value, regardless of its admissibility under the rules of evidence. The standard for receipt of evidence at the temporary custody hearing is much more liberal than at other hearings. The court may consider “any information having probative value.” Despite this liberal standard, the court should exercise care to exclude evidence that is not reliable. Regardless of the evidentiary standard, the court should be consistent in its evidentiary rulings, so the parties may plan for the type and quality of evidence to be presented at temporary custody hearings. C.R.S. § 19-3-403(3.6)(a)(II)  Advisement: Each parent attending a temporary custody hearing must be given a form affidavit and advisement. Several sample advisements follow. C.R.S. § 19-3-403(3.6)(a)(I) o Sample Advisement

10 JUVENILE COURT, ______, STATE OF COLORADO

CASE NO.

ADVISEMENT IN DEPENDENCY AND NEGLECT CASE

THE PEOPLE OF THE STATE OF COLORADO

In the Interest of: ______Minor Child(ren) Upon the Petition of: Department of Human Services Petitioner, And Concerning: ______Respondent(s)

YOUR RIGHTS as a respondent parent or guardian in the Dependency and Neglect (Dependency and Neglect) case include the following (please initial each paragraph you have read):

1. You have the right to be represented by a lawyer at every stage of the proceedings. 2. If you cannot afford a lawyer and the Court determines that you qualify financially, the Court will appoint a lawyer upon your request. The Court will use financial guidelines established by the Colorado Supreme Court and other relevant financial considerations in making this decision. If you do not qualify for a court-appointed attorney, you may hire an attorney of your choice at your own expense. 3. In Dependency and Neglect cases, the Court will appoint a Guardian ad litem (GAL) who is a lawyer. The GAL represents the best interests of the child(ren) as the GAL sees them, which may or may not be what the child(ren) or parents’ desire. 4. If your child(ren) were removed from your custody, you should have received a Notice of Rights and Remedies for Families. The Notice is attached to this advisement. Please be sure that you review it with your attorney. 5. Except for temporary custody hearings, you have the right to have hearings in this case heard by a judge instead of a magistrate. Unless you indicate to the magistrate at the time you are given the next hearing date that you desire the judge to hear the matter, the hearing may be heard by the magistrate. If your lawyer is not present when a matter is set for hearing or if the matter is set on notice, the request must be made within five (5) days after you receive notice that the hearing has been set. 6. If you choose to have the magistrate hear the matter, you are bound by the findings and orders made by the magistrate unless you file a request for review of the magistrate’s decision within five (5) days. 7. At the temporary custody hearing, you will be given a Relative Resource Form. This form lets you provide the names, addresses, and telephone numbers for any family members who may be able to provide a temporary home for your child(ren). This form must be completed and returned to your caseworker within fifteen (15) days or at such other time the judge or magistrate requires. 8. If you or your child(ren) have Native American or Indian heritage, the Indian Child Welfare Act may apply. An “Indian Child” under the Act is an unmarried person under the age of eighteen (18) who is either a member of an Indian tribe or who is eligible for membership in an Indian tribe and has a parent who is a member of an Indian tribe. 9. You have the right to a trial (known as an adjudicatory hearing) before either a jury of six (6) persons or before a judge or magistrate to determine whether the City Attorney, representing the People of the State of Colorado, has proven the dependency petition by a preponderance of the evidence. If the Indian Child Welfare Act is applicable, the burden of proof is by clear and convincing evidence. At the trial, you may question all witnesses called by other parties, present any defenses to the petition, call witnesses to testify on your behalf, and testify yourself. You have the right to have witnesses subpoenaed to require them to appear to testify. You may also be called as a witness by any other party. 10. You have the right to a trial within ninety (90) days from the date you were served with the petition. If any child on the petition is under six years old when the petition is filed, the hearing will be heard within sixty (60) days. The Court may extend these time periods if it finds that the best interests of the child(ren) will be served by granting a delay. 11. You have the right to deny or admit any or all of the allegations contained in the petition alleging that your child(ren) are dependent or neglected. 12. Any admission by you to the petition or amended petition must be made freely and voluntarily, and not the result of any undue

11 12 o Notice of Rights and Remedies

13 NOTICE OF RIGHTS AND REMEDIES FOR FAMILIES

Your children have been, OR are being removed from your home pursuant to Colorado Revised Statute, Title 19, C.R.S., the Colorado Children’s Code. This notice provides you with important information. This is an important document, please read it carefully. If English is not your primary language, or you are hearing impaired you may request an interpreter for all proceedings. If you know or have reason to know your family is of American Indian heritage, the Indian Child Welfare Act (P.L. 95-608) applies.

The United States Constitution and State of Colorado Constitution guarantee your right to due process which includes a fair hearing.

PARENTAL RIGHTS

1. You have a right receive this NOTICE of RIGHTS AND REMEDIES and a juvenile court order. 2. You have a right to an attorney. If the Court decides that you cannot afford to pay an attorney one will be proved for you at no cost. You are entitled to petition the court to appoint an attorney of your choosing that may or may not be granted by the Court. 3. You have a right to participate with the County Department of Social Services (referred to hereinafter a D.S.S) caseworker in developing a case plan. All parties will be requested to sign the case plan.

14 15  Placement Preferences and Required Findings: o It is preferable that a child be placed in his or her own home. C.R.S. § 19-1-102(1)(a)

16 o Child protection workers use the Colorado Assessment Continuum to determine whether a child is in danger. 12 C.C.R. 2509-4, § 7.301.1 o A child needing placement out of the home should be placed in the custody of an appropriate relative, if at all possible. Custody includes the right to care, custody, and control of a child and the duty to provide food, clothing, shelter, ordinary medical care, education and discipline and, in an emergency situation, to authorize surgery or other extraordinary care. C.R.S. § 19-1-115(1)(a), C.R.S. § 19-1-103(73) o Custody with the child’s grandparent is preferred. C.R.S. § 19-1-115(1)(a) o The court must find that no suitable natural or adoptive parent is available, and must consider whether there is credible evidence of past abuse by the child’s grandparent(s). C.R.S. § 19-1-117.7 o A child may be placed in temporary shelter care, in foster care, or in a treatment facility. C.R.S. § 19-1-103(51.3) and (98) o The agency having custody of the child must give information to the court concerning the child at any time it is requested. C.R.S. § 19-1-115(2)(b) o A child may not be removed from the state for more than thirty days without court approval. If a child must be placed outside the state for more than thirty days, the individual or agency having custody must comply with the Interstate Compact on Placement of Children (ICPC). C.R.S. § 19-1-115(3)(b), C.R.S. § 24-60-1801 et seq o A child’s placement out of the home shall be for a determined period. The court must review the placement no later than three months after it was ordered. C.R.S. § 19-1-115(4)(a) o When placing children out of the home, the court should consider the setting. Preferences include the ability of the placement facility to meet the special educational needs of the child, the proximity of the proposed out-of- home placement facility to the child’s parents’ residence, and whether the proposed placement facility is in the same school district as the child’s parents’ residence. C.R.S. § 19-1-115.5(2)(b) 1. Required Findings for Removal: o Depending on the circumstances of the case, the child may be placed with: . Dep’t of Human Services, if such placement is appropriate and in the child’s best interests; . A relative of the child who is appropriate, capable, willing, and available for care if such placement is in the best interests of the child, and if the court finds that there is no suitable birth or adoptive parent available (after due diligence was exercised in attempting to locate such a parent).

C.R.S. § 19-3-403(3.6)(a)

o With certain exceptions, a newborn child who is not in a hospital setting shall not be taken into temporary custody for a period of longer than twenty-four hours

17 without a court order that includes findings that an emergency situation exists, and that the newborn child is seriously endangered. C.R.S. § 19-3-401(3)(b) o There is a presumption that siblings be placed together if Dep’t of Human Services locates an appropriate, capable, willing, and available placement. This presumption may be rebutted by a preponderance of the evidence that joint placement is not in the child’s best interests. C.R.S. § 19-3-402(2)(b) o Placement with a grandparent is preferred over foster care. The grandparent must be appropriate, capable, willing and available to care for the child. The placement must be in the child’s best interests. C.R.S. § 19-3-402(2), C.R.S. § 19-3-403(3.6) o You must consider any credible evidence of past abuse or neglect by the grandparent. Credible evidence includes medical, school, police, central registry, and court records. C.R.S. § 19-1-117.7 o If the child is placed out of the home, it is important to begin developing ideas for concurrent permanency plans for that child right away. This will help to avoid delays later in the case, should reunification or other permanent plans fail. C.R.S. § 19-1-115(6), 12 C.C.R. 2509-1, § 7.001.41 o Findings and orders entered by the court when placing children will dictate future funding sources for the child. Title IV-E of the Social Security Act provides federal matching funds to help pay for the cost of foster care for eligible children if the court finds reasonable efforts have been made to prevent or eliminate the need for removal, or if an emergency situation exists, such that it is reasonable not to make reasonable efforts to prevent removal. C.R.S. § 19-1-115(6), 12 C.C.R. 2509- 1, § 7.001.41 o The court must also order the parents to pay a fee, based upon ability to pay, to cover costs of the child’s residential care if public money is used to pay for the care. C.R.S. § 19-1-115(4)(d), C.R.S. § 26-5-102

2. Additional Findings for Removal

o If a court orders removal of a child, the court should find also that: . Continuation of the child in the home would be contrary to the child’s best interests C.R.S. § 19-1-115(6); . There has been compliance with the reasonable efforts requirements regarding removal of the child from the home, as follows:  Reasonable efforts have been made to prevent or eliminate the need for removal of the child from the home C.R.S. § 19-1-115(7), 42 U.S.C.A. § 671(a)(15); or  An emergency situation exists that requires the immediate temporary removal of the child from the home, and it is reasonable that preventive efforts not be provided due to the emergency situation; or  Reasonable efforts to prevent the child’s removal from the home are not required because:

18 o The parent has subjected the child to “aggravated circumstances” as described in sections 19-3-604(1) and (2), such as when someone has abandoned, tortured, chronically abused, or sexually abused the child; or o The parental rights of the parent with respect to a sibling of the child have been involuntarily terminated; or o The parent has been convicted of any of the following crimes: . Murder of another child of the parent; . Voluntary manslaughter of another child of the parent; . Aiding, abetting, attempting, conspiring, or soliciting to commit the crimes of murder or voluntary manslaughter of the child or of another child of the parent; o Felony assault that resulted in serious bodily injury to the child or to another child of the parent. o Reasonable efforts have been made or will be made to reunite the child and family, or o Efforts to reunite the child and family have failed; 42 U.S.C.A. § 672(a)(1) and (2), 42 U.S.C.A. § 678

o Procedural safeguards with respect to parental rights have been applied in connection with the removal of the child from the home, a change in the child’s placement out of the home, and any determination affecting parental visitation. 42 U.S.C.A. § 671(a)(15) o These requirements do not affect the court’s authority to protect or transfer custody of a child. They do affect Dep’t of Human Services’ ability to get federal funding for the placement. Suter v. Artist M., 503 U.S. 347 (1992)

3. Collecting Information on Relatives

o At the custody hearing, the court must order the parents to provide, within fifteen days, the names, address, and telephone numbers, if known, of any relatives. These relatives may later serve as shelter care or permanent care for the child. The form and affidavit related to child placement must be completed within fifteen days after the hearing or prior to the next hearing date, whichever occurs first. The court must advise that failure to identify every relative who may be a possible placement may result in the child’s placement outside of any relative home on a permanent basis. C.R.S. § 19-3-403(3.6) o The federal reasonable efforts requirement gives state courts the unique opportunity to impact Dep’t of Human Services funding when Dep’t of Human Services fails to use services to avert placements or reunite families. This remedy is especially important since the Supreme Court has held there is no private right

19 of action for the state’s failure to make reasonable efforts. Suter v. Artist M., 503 U.S. 347 (1992) o Under the Adoption and Safe Families Act (ASFA), specific exceptions to the requirement were adopted to clarify that the child’s safety is “the paramount concern.” 42 U.S.C.A. § 671(a)(15)(A) o Preventive services are not required in an emergency. If an emergency exists that requires immediate temporary removal of the child from the home, so that preventive services could not safely be offered, the court may find that it is reasonable not to make efforts to prevent removal. If reunification efforts would be detrimental to the child’s best interests, they may be waived entirely. C.R.S. § 19-1-115(6)(b), C.R.S. § 19-3-401(1.5)

4. Placement of a Delinquent

o Reasonable efforts are also required for placement of a delinquent. Colorado law requires the court to make a reasonable efforts determination in the detention of a delinquent. C.R.S. § 19-2-508(3)(a)(VII) o The court must also look at reasonable efforts when reviewing a delinquent in a community placement. C.R.S. § 19-2-906.5 o A community placement includes a foster care home, group home, residential childcare facility or residential treatment facility. C.R.S. § 19-1-103(24.5)

5. Questions on “Reasonable Efforts”

o Were services offered to the family before the child’s removal? o If not, was it reasonable not to offer services? o If services were offered: . Were the services relevant to the family’s problems? . Were they adequate to address these problems? . Were the services made accessible to the family? . Were the efforts diligently made? . Were multiple services well coordinated? . Were there other cost-effective services that should have been offered?  Other Temporary Orders: The court may enter temporary orders at the temporary custody hearing. o Content of Temporary Orders . Among other things, the court may:  Order Dep’t of Human Services to make reasonable and timely efforts to contact identified relatives of the child, within ninety days, for consideration as a possible placement;  Authorize or consent to medical, surgical, or dental treatment or care for a child placed in shelter care (if parent’s consent cannot be obtained);  Authorize a family group conference;

20  Cooperate with a GAL or CASA investigation;  Punish by contempt of court the failure of any party to comply with temporary orders of protection or any other valid temporary order. C.R.S. § 19-3-403(3.6), C.R.S. § 19-3-403(6)

o Implementing Temporary Orders . When the court enters temporary orders of protection, it is important that the parties clearly understand what the court has ordered. Ideally, all parties should receive a copy of any temporary protective order before they leave the courtroom. In some jurisdictions, judges, magistrates or clerks prepare these orders on laptop computers. In other courts, a handwritten form is filled out and signed by the judge or magistrate and served on the parties. Even if the court does not prepare the order for distribution to the parties at the hearing, the court should require the county attorney to prepare the order immediately in order to avoid delay and to promote a clear understanding of the order. C.R.S. § 19-3-403(6)  Custody Hearings for Special Circumstances: Sometimes special circumstances exist which are covered by special legal requirements. C.R.S. § 19-3-103(1) o Religious Objections to Medical Treatment . Parents may not limit a child’s access to medical care, on religious grounds, in a life-threatening situation, or when the condition of the child will result in serious disability. C.R.S. § 19-3-103(1) . The court may order a medical evaluation of the child to make a determination as to whether the child is in a life-threatening situation or the condition of the child will result in a serious disability. C.R.S. § 19-3- 103(1), C.R.S. § 19-1-104(3) . The court may order that medical treatment be provided to a child if it finds, on the basis of any relevant evidence, including a medical evaluation, that the child is in a life-threatening situation or the child’s condition will result in serious disability. A parent may not interfere with the provision of court-ordered medical treatment of a child. C.R.S. § 19-3- 103(1) o Developmentally Disabled or Mentally Ill Child . A developmentally disabled or mentally ill child must be evaluated. The court should refer any child who appears to be developmentally disabled to the nearest community-centered board for an eligibility determination. C.R.S. § 19-3-403(4)(a) . The court should order mental health prescreening to be done within twenty-four hours for children who appear to be mentally ill. C.R.S. § 19-3- 403(4)(b) . After prescreening, the court should determine if commitment procedures are necessary. C.R.S. § 19-3-403(4)(b) o Release of Child

21 . The court may release a child at any time. The court can release a child with or without a hearing, and with or without ordering restrictions on the person responsible for the child. C.R.S. § 19-3-403(5) o Out of State Runaways and American Indian Children . Special requirements apply to out-of-state runaways and American Indian children. Under the Interstate Compact on Juveniles (ICJ), out-of- state runaways may be held in shelter care for up to seven days to arrange transfer to the child’s home state. C.R.S. § 19-3-403(3.7) . For Indian children, the court must expeditiously transfer the case to tribal court or comply with Indian Child Welfare Act (ICWA) requirements. 25 U.S.C.A. § 1922 o Orders for Evaluation and Treatment . The court may issue temporary orders if such orders are in the best interests of any child subject to a Dependency and Neglect petition. The orders may be made before adjudication. The child’s parent, guardian or legal custodian must get notice. In addition to legal custody, these orders may provide for evaluation, treatment, support or protection. C.R.S. § 19-1- 104(3)(a) . The court may issue ex parte emergency orders if reasonably necessary. The court must find an emergency exists requiring medical evaluation or medical or surgical treatment. Reasonable efforts must be made to notify the child’s parents, guardian, or legal custodian for consent before issuing the order. The emergency circumstances must be included in the order. After business hours, the order may be verbal and reduced to writing the next court day. An ex parte order expires twenty- four hours after it is issued. The child’s parents, guardian or legal custodian may move to set aside the order any time before it expires. C.R.S. § 19-1-104(3)(b), C.R.J.P. 2.3 . The court may authorize non-emergency treatment for children in shelter care. This includes medical, surgical and dental treatment. Reasonable efforts must be made first to get the consent of the parent, guardian or legal custodian. Emergency treatment may be authorized if they are not immediately available. C.R.S. § 19-3-403(6) . “ Shelter care” is defined as a child’s temporary care in a physically unrestricted facility pending court disposition of a placement order. C.R.S. § 19-1-103(98) . The court may order an independent mental examination of the child. If the petition alleges only emotional abuse, the court must order a mental examination if any party requests it. The evaluation costs are split between the requesting party and the county, unless the court finds this would be a hardship to the party. C.R.S. § 19-3-312(4) o Orders of Protection and Support . The court may issue a temporary order to protect the child. The child must be the subject of a Dependency and Neglect petition filed or about

22 to be filed. The order may prescribe reasonable conditions of behavior for the respondent or any special respondents. C.R.S. § 19-1-114(1) . Anyone who resides with the child may be included and required to be present at Dependency and Neglect hearings. C.R.S. § 19-1-114(3)(b) . The person subject to the order must be afforded notice and an opportunity for a hearing. C.R.S. § 19-1-114(4) . The following persons are subject to orders of protection:  Parent;  Guardian;  Custodian;  Legal custodian;  Stepparent;  Spousal equivalent;  Person to whom parental responsibilities have been allocated;  Any party to the Dependency and Neglect proceeding;  Anyone who resides with the child. C.R.S. § 19-1-114

. The order of protection may require the person to:  Stay away from the child or the child’s residence;  Abstain from offensive conduct against the child or the child’s parents, guardian, legal custodian, person to whom parental responsibilities have been allocated or anyone who has legal custody of the child;  Give proper care and attention to the home;  Refrain from acts of omission and commission that tend to make the home an improper place for the child;  Cooperate in good faith with any agency with legal custody, providing protective supervision, or offering court-ordered services to the child;  Pay any court-ordered child support;  Pay damages recoverable under the victim compensation law. C.R.S. § 19-1-114(2)

. The order may also require a parent or guardian to participate actively in the rehabilitation process. It may permit a parent to visit the child at stated periods. C.R.S. § 19-1-114(3) . If the child is absent from court-ordered placement, the court may issue an emergency protection order upon a finding that an imminent danger exists. C.R.S. § 19-1-113(5)(a) . Parents, guardians, or other parties who fail to comply are subject to contempt. This includes special respondents. They may be held in contempt if they violate any provision of the order of protection or other

23 valid court order without good cause. C.R.S. § 19-1-114(3)(a) and (5), C.R.C.P. 107 o Temporary Protection Orders: The court may also issue temporary protection orders. C.R.S. § 13-14-103 . The protection order expires at the close of business the day following its issuance, but may be extended, provided the person subject to the order is given an opportunity to respond with two days. C.R.S. § 19-1-113(4) . The order could be to:  Restrain a person from threatening, molesting, or injuring the child;  Restrain a person from interfering with the supervision of a child;  Restrain a person from having contact with the child’s court- ordered residence;  Restrain a person from harboring a child who is absent without permission from a court-ordered placement.  Prevent unlawful sexual offenses. There must be reasonable cause to believe that a child is in danger of being a victim of an unlawful sexual offense in the reasonably foreseeable future.  Restrain a party from threatening, molesting, injuring, or contacting any other party;  Prevent domestic abuse. C.R.S. § 19-1-113(3), C.R.S. § 13-14-103(1)(c), C.R.S. § 13-14-103(1)(b)

. A judge must be available at all times to issue emergency protection orders when the courts are closed. The judge may issue a written or verbal ex parte order. C.R.S. § 13-14-103(1)(d) and (e) . A verbal emergency protection order may be issued only if the judge finds that an imminent danger exists in close proximity to the life or health of the minor child in the reasonably foreseeable future. C.R.S. § 13- 14-103(2)(a) . The order must be reduced to writing and served on the respondent with a copy given to the protected person. C.R.S. § 19-1-113(5)(a) . The order expires not later than the close of judicial business on the next day of judicial business following the day of issue unless continued by the court. C.R.S. § 19-1-113(4) . The order must be entered into the central registry of protection orders. C.R.S. § 13-14-103(3) . The court must summon a person receiving three emergency protection orders within a one-year period. C.R.S. § 13-14-103(10) . A protection order from another state, Indian tribe, or U.S. Territory or commonwealth must is given full faith and credit; that is, given the same credit as a protection ordered entered in this state, provided the person subject to the order:  Had notice and was given opportunity to be heard;

24  The issuing court had personal and subject matter jurisdiction; and  Separate grounds exist for the issuance of any mutual protection order. C.R.S. § 13-14-104(1) and (2)

. A peace officer may request the restraining order. County Dep’t of Human Services or a responsible person may request an order to prevent an unlawful sexual offense. Anyone who supervises a child placed out of home may request an order to protect an absent child. A victim may request a domestic abuse order. When an order is requested, the court must ask parties and their attorneys to disclose any prior restraining orders. C.R.S. § 19-1-113(2) . The person being restrained must be served with the order. If the person has not been personally served but has actual notice of the existence of the order from anyone, that person may still be penalized for violating it. C.R.S. § 13-14-103(4) . Venue for filing a request for a protection order is in the county where the acts constituting unlawful sexual assault or domestic abuse occurred. C.R.S. § 13-14-103(5) . The person being restrained may request the order to be dissolved or modified. The petitioner must get two day’s notice (or less if the court prescribes). The hearing must be held at the earliest opportunity and has precedence over all other matters of a different character. The court must resolve this motion as expeditiously as the ends of justice require. C.R.S. § 13-14-103(1)(f), C.R.S. § 19-1-113(4) . A police officer must use every reasonable means to enforce the restraining order. The police may arrest a restrained person who has notice, if there is probable cause to believe the person violated the order. C.R.S. § 19-1-113(5)(b) . If the person has not been served, the officer must serve the order. If the order is verbal, the officer must state the substance of it. Police may also protect the alleged victims, including transporting them to a shelter. C.R.S. § 18-6-803.5 o Effects of Domestic Violence . The effects of domestic violence and other forms of trauma on children are frequently understated. Neurobiologist Dr. Bruce Perry and others at the CIVITAS Child Trauma Program at Baylor College of Medicine observe:  We often hear “Children are resilient,” or “They’ll get over it, they didn’t even know what was happening.” It is not uncommon for adults to relate the traumatic events to clinicians in the presence of the child as if they were invisible. Often, recounting the event, the adults will describe how the traumatic event was terrifying for

25 them but, as they describe the child’s reactions, they frequently misunderstand the child’s unattached, non-reactive behaviors as “not being affected” rather than the “surrender” response. This pervasive, destructive view of caregiving adults in a young child’s life exacerbates the potential negative impact of trauma. Of course, children “get over it”—they have no choice. Children are not resilient, children are malleable. In the process of getting over it, elements of their true emotional, behavioral, cognitive and social potential are diminished—some percentage of capacity is lost, a piece of the child is lost forever . . . Persistence of the destructive myth that ‘children are resilient’ will prevent millions of children, and our society, from meeting their true potential. Bruce D. Perry, et. al., Childhood Trauma, the Neurobiology of Adaptation and Use-dependent Development of the Brain: How States Become Traits (1995).  Review of Custody Orders o The court should review the temporary custody order within three months. Subsequent reviews must be held every six months. The court may order that the reviews be administrative if the parties do not object. C.R.S. § 19-1-115(4)(a) and (c)  Legal Custody Options o Legal custody means the right to the care, custody, and control of a child and the duty to provide food, clothing, shelter, ordinary medical care, education, discipline for the child, to determine where the child will live (unless the child is placed with Dep’t of Human Services), and, in an emergency, to authorize surgery or other extraordinary care. This custody may be taken from a parent only by court order. C.R.S. § 19-1-103(73) o Options for legal custody include an individual, agency or institution. Preference, however, is for the child’s grandparent who is determined to be appropriate, capable, willing, and available for care if the court finds, after due diligence, no suitable natural or adoptive parent. C.R.S. § 19-1- 115(1) o A child is determined to be a resident of the school district where the person having legal custody resides. C.R.S. § 22-1-102 o No individual or agency vested by the court with legal custody of the child may remove a child from the state for more than thirty days without court approval. When granting this approval, the court should follow the requirements of the Interstate Compact on Placement of Children (ICPC). C.R.S. § 19-1-115(3)(b), C.R.S. § 24-60-1801 et seq o Legal guardianship means the duty and authority to make major life decisions affecting a child, including the authority to: consent to the child’s marriage; enlistment in the armed forces; medical or surgical treatment; represent a child in legal actions and make decisions of substantial legal significance concerning the child; consent to the adoption of a child when the parent’s rights were previously terminated; along with having the rights and responsibilities of legal custody

26 (when this has not been ordered in another person, agency, or institution.) C.R.S. § 19-1-103(60) Dependency and Neglect Petition: The petition, which must be court authorized, recounts the facts that make the child “neglected or dependent.” Respondents and special respondents must be named.

 Filing o A petition must be filed within ten court days of taking a child into custody. C.R.J.P. 4 o It is usually filed at the temporary custody hearing. The action cannot be dismissed if this deadline is missed, because it does not deprive the court of jurisdiction. However, the parent may request the child be released from temporary custody. People in the Interest of A.M., 786 P.2d 476 (Colo. App. 1989) o Only the state may file a Dependency and Neglect petition. L.G. v. People, 890 P.2d 647 (Colo. 1995) o The child’s guardian ad litem or relative may not. McCall v. District Court, 651 P.2d 392 (Colo. 1982) o However, once a petition is filed, the state cannot withdraw it if the GAL objects. Unlike the GAL, an intervening relative’s objection cannot prevent dismissal. People in the Interest of G.S., 820 P.2d 1178 (Colo. App. 1991)  Contents of the Petition o The petition must state facts to establish the court’s jurisdiction. Statements may be made “upon information and belief.” C.R.S. § 19-3-502 o The petition must include a statement indicating what continuing inquiries Dep’t of Human Services has made in determining whether the child is an Indian child, and if so, the identity of the child’s tribe. C.R.S. § 19-3-502(2.7), 25 U.S.C.A. § 1912 o The petition must include a section on reasonable efforts. 42 U.S.C.A. § 671(a)(15) o If removal is requested, it must state whether preventive services were offered or could not be offered because of an emergency situation. C.R.S. § 19-3-502(2.5) o If the child has already been removed, it must explain what services were offered to reunify the family or that reunification is inappropriate because of “aggravated circumstances.” C.R.S. § 19-1-115(6) o The petition must warn parents of potential termination. It must state that termination of the parent-child relationship is a possible remedy. It must also include: . an explanation of the permanency hearing requirement if the child is placed out of the home for a period of twelve months; and . the right to object to the administrative review in favor of a court review for the three month review. C.R.S. § 19-3-502(3)

o Dependency and Neglect Definitions: The following are the statutory definitions of a child who is dependent or neglected. (These definitions are discussed in more detail in the section on adjudication.)

27 . Abandoned; . Mistreated or abused; . Lacking parental care; . Subject to an injurious home environment; . Neglected; . Homeless; . Beyond parental control; . Abused child’s sibling; C.R.S. § 19-3-102(1)(a), C.R.S. § 19-3-102(1)(a), C.R.S. § 19-3-102(1)(b), C.R.S. § 19-3- 102(1)(c), C.R.S. § 19-3-102(1)(d), C.R.S. § 19-3-102(1)(e), C.R.S. § 19-3-102(1)(f), C.R.S. § 19-3-102(2)

o Completeness of Petition: The following questions may be helpful in determining whether the Dependency and Neglect petition is complete. . Title; . Child’s name, age and residence; . Respondents’ names and residences; . Indian child inquiry; . Dependency and Neglect definition alleged; . Factual allegations; . Reasonable efforts; . Termination warning; . Permanency hearing notice; . Right to court review; . Verification. C.R.S. § 19-3-502

 Respondents o All persons who caused or permitted abuse or neglect must be named respondents. That includes responsible person and any parent, guardian or legal custodian alleged to have abused or neglected the child. If it is in the child’s best interests to do so, the county attorney may also include the other parent, guardian, legal custodian, and stepparent or spousal equivalent. C.R.S. § 19-3-502(5) o Potential Respondents: The following are potential respondents with the statutory definitions. . A parent is the child’s birth parent or adoptive parent. . A guardian is the person vested by the court with the duty and authority to make major decisions affecting the child. . The legal custodian is the person vested by the court with the right of care, custody and control of the child, and the duty to provide food, shelter, clothing, medical care, education and discipline. . The custodian is the person who has been providing shelter, food, clothing, and other care for the child as a parent would, whether or not by court order.

28 . The responsible person is the child’s parent, guardian, legal custodian, or anyone responsible for the child’s health and welfare. . The stepparent is the person married to the child’s parent, who has not adopted the child. . The spousal equivalent is the person in a family-type living arrangement with the parent who would be a stepparent if married to the parent. C.R.S. § 19-1-103(82)(a), C.R.S. § 19-1-103(60), C.R.S. § 19-1-103(73)(a), C.R.S. § 19-1- 103(35), C.R.S. § 19-1-103(94), C.R.S. § 19-1-103(104) C.R.S. § 19-1-103(101)

o Including Fathers . To avoid delays caused by unresolved paternity rights, the court should insist that all potential parents be included from the start. The court should require all parents to be listed in Dependency and Neglect petitions, so that jurisdiction over all parents can be established. o Special Respondents: Other adults may be joined as “special respondents.” C.R.S. § 19-1-103(100) . Special respondents are subject to protective orders and treatment plans. To be a special respondent, the person must meet one of the following criteria:  Lives with the child;  Assumed a special parenting role toward the child;  Participated in whole or in part in the child’s abuse or neglect; or  Maintains a significant relationship with the child. C.R.S. § 19-3-502(6)

. Special respondents may contest the joinder. The court maintains personal jurisdiction over special respondents by service of a summons and petition or a motion for joinder. C.R.S. § 19-3-502(6)  Responsive Pleadings o Responsive pleadings are not required. Respondents may raise any defenses or objections at trial or by motion. However, the child’s age and residence are deemed admitted unless specifically denied. C.R.J.P. 4.1(a) and (b) o Any defects in the petition must be raised by motion. The motion must be made before the respondent admits or denies the allegations. The defects are deemed waived unless the court grants the waiver for good cause. Lack of jurisdiction may be raised at any time. C.R.J.P. 4.1(c) o Respondents may not assert any counterclaims, cross claims or other claims in the Dependency and Neglect proceeding. However, respondents are not barred from filing separate actions in district court for damages. C.R.S. § 19-3-502(4), Pueblo Cty. Comm’rs v. District Court, 708 P.2d 466 (Colo. 1985)  Special Circumstances o Young Children . If the petition names a child under the age of six, the case is treated as an expedited permanency planning (EPP) case. C.R.S. § 19-1-123

29 . EPP cases require that an adjudicatory hearing be held within sixty days of service of the petition, that the dispositional hearing occur within thirty days of the adjudicatory hearing, that the permanency planning hearing be held within ninety days of the dispositional hearing, and that permanent placement occur within twelve months of the child’s placement out of the home. C.R.S. § 19-3-505(3), C.R.S. § 19-3-702, C.R.S. § 19-3- 703 o Emotional Abuse . If the petition alleges only emotional abuse, the court must order an independent mental examination of the child if any party requests it. The court may also order such an examination on its own motion. The evaluation costs are split between the requesting party and the county, unless it would be a hardship to the requesting party. C.R.S. § 19-3-312(4) . If the petition alleges the child is an abused child’s sibling, Dep’t of Human Services must engage in concurrent planning. The goal is to expedite permanency planning for the child. Under this Dependency and Neglect definition, the parents, guardian, or legal custodian have subjected another child to either:  An identifiable pattern of habitual abuse; and  They have also been adjudicated Dependency and Neglect respondents based on physical or sexual abuse; or  A court has found they caused another child’s death; and  The abuse poses a current threat to the child.  C.R.S. § 19-3-312(5), C.R.S. § 19-3-102(2) o Indian Child . If the petition involves an American Indian child, notice of any pending proceedings and a right to intervene must be sent to the tribe, to the parent, and to the child’s custodian, by registered mail with return receipt requested. It must include the petition and a notice of the tribe’s right to intervene. If the court does not know the identity or location of a parent or Indian custodian and the tribe, it must notify the Secretary of the Interior. The Secretary has fifteen days after receipt to provide notice to the parent or Indian custodian and the tribe. 25 U.S.C.A. § 1912(a)  Hearing on the Petition o The court issues a summons after a dependency and neglect petition is filed. The summons gives the date, time and place of the court hearing. It briefly recites the substance of the petition. It includes a warning of potential termination of parental rights and a list of the respondent’s rights. C.R.S. § 19-3-503(1) o Parties’ Rights . At the initial appearance on the petition, the court should advise the parties of their rights. These include the right to:  Counsel;

30  Court-appointed counsel (parent, guardian or legal custodian only);  EPP timeframes;  Trial by jury;  Separate termination hearing; and  Appeal. C.R.J.P. 4.2(a), C.R.S. § 19-3-202, C.R.S. § 19-3-212

. Parents should also be notified of the reason the child was removed from the home and of the availability of a conflict resolution process. C.R.J.P. 4.2(a) . The court should explain the potential consequences of Dependency and Neglect proceedings. The court should make certain the respondents understand the petition allegations, dispositional alternatives and the potential for termination of the parent-child legal relationship. The court should warn them that:  Any admissions must be voluntary;  The court is not bound by any promises of specific dispositions; and  Termination frees the child for adoption. C.R.J.P. 4.2(d)

. Respondents who do not appear may be advised in writing. This may occur if a respondent is in prison. C.R.J.P. 4.2(d) o Admissions . After advisement, the respondents must admit or deny the petition allegations. The court may accept a verbal admission from a respondent who is present. The court may also accept a sworn written admission from one who is not present. The admission must meet these requirements:  The respondent understands his or her rights;  The respondent understands the allegations;  The respondent understand the admission’s effect; and  The admission is voluntary. C.R.J.P. 4.2(b) – (d)

. One parent’s admission does not bind the other parent. The other parent is still entitled to a trial to present evidence and challenge the petitioner’s evidence. People in the Interest of A.M., 786 P.2d 476 (Colo. App. 1989) . The court has discretion in accepting an admission if the respondent is only willing to admit to a lesser ground. For example, a parent accused of sexual abuse may agree only to the finding of an injurious home environment. The court should assess the chance that the treatment plan will succeed. A parent may be more cooperative without the stigma of a

31 serious adjudication ground. The admission could also avoid forcing the child to testify, or the potential that the case will be dismissed. However, if effective treatment will be sabotaged by the parent’s continued denial of responsibility for the abuse, a trial on the more serious ground may be a necessary preliminary to successful treatment and family reunification. People in the Interest of A.M., 786 P.2d 476 (Colo. App. 1989) Dependency and Neglect Adjudication: At adjudication, decide whether the evidence supports the petition allegations. Parties may request a jury trial. After the hearing, the court must determine whether the child is neglected or dependent.

 Purpose o Dependency and Neglect proceedings are unique among civil actions. They are not designed to punish the parent or parents, but to determine the child’s status - whether the child has the benefit of parental guidance, concern, protection or support. People in the Interest of E.A., 638 P.2d 278 (Colo. 1981), People in the Interest of S.S.T., 38 Colo. App. 110, 553 P.2d 82 (1976)(disapproved of on other grounds by Petition of R.H.N., 710 P.2d 482 (Colo. 1985)  Proof o The petitioner has the burden to prove the petition allegations by a preponderance of the evidence. C.R.S. § 19-1-103(3) o However, . The child’s age and residence are deemed admitted unless specifically denied before the adjudicatory hearing; . The petitioner is not required to prove the child must be separated from the parent, guardian or legal custodian; . Proof of a child’s nonaccidental injury is prima facie evidence of dependency and neglect and may support an adjudication order. C.R.S. § 19-3-505(1), C.R.S. § 19-3-505(2), C.R.S. § 19-3-505(7)(a)

o Proof of facts not alleged in the petition may be admitted. The parties must consent. If they do not consent, the court may grant a motion to amend the petition to conform to the evidence. If the amendment is substantial, the court must continue the proceedings if it is in the best interests of the child or any other party. C.R.S. § 19-3-505(4) o During a welfare check, police discovered suspected cocaine, but destroyed the evidence. The Colorado Court of Appeals held the exclusionary rule does not apply in Dependency and Neglect cases. People in the Interest of A.E.L., 181 P.3d 1186 (Colo. App. 2008)  Timeline o Non-EPP Cases . In non-EPP cases, the court must hold the adjudicatory hearing within ninety days of petition service. It should be scheduled at the earliest possible time. The court should grant a continuance only if not to do so would result in manifest injustice. If a delay is necessary, the court should

32 specify the reason and reschedule the hearing as soon as possible. C.R.S. § 19-3-505(3), J. Dir. 96-08 . If the deadline is missed, dismissal is not required. People in the Interest of S.B., 742 P.2d 935 (Colo. App. 1987) o EPP Cases . In EPP cases, the court may grant a continuance only if it finds  the child’s best interests will be served in granting a delay and  good cause. . These findings should be stated on the record. People in Interest of D.M., 186 P.3d 101 (Colo. App. 2008)  Special Circumstances: The following are two special circumstances in Dependency and Neglect proceedings. C.R.S. § 19-3-506 o Developmentally Disabled or Mentally Ill Child . Developmentally disabled or mentally ill children must be evaluated. The court should refer any child who appears to be developmentally disabled to the nearest community-centered board for an eligibility determination. The court should order a mental health prescreening to be done within twenty-four hours for children who appear to be mentally ill. The court must review the prescreening within twenty-four hours of receiving it. From this review, the court should determine if commitment procedures are necessary and, if so, hold a hearing. The court may delay Dependency and Neglect proceedings for these evaluations. C.R.S. § 19-3- 506 o GAL Prosecuting Petition . A GAL may object to Dep’t of Human Services’ request not to prosecute the petition. The GAL must then prosecute it. People in the Interest of R.E., 729 P.2d 1032 (Colo. App. 1986) o Child Hearsay . Out of court statements made by a child that describe acts of abuse of which the child was the victim or witness may be admissible as an exception to the hearsay rule in civil cases, dependency and neglect cases, and criminal cases. Before this evidence is admitted, the party seeking to introduce the statement must give reasonable notice of his or her intention to introduce it and give the particulars of the statement. C.R.S. § 13-25-129(1) . The court must find in a hearing conducted outside the presence of the jury that:

 The time, content and circumstances of the statement provide sufficient safeguards of reliability; and  The child either: o Testifies at the proceedings; or o Is unavailable as a witness, and there is corroborative evidence of the act that is the subject of the statement.

33 C.R.S. § 13-25-129(1)

. To determine whether a child’s out-of-court statements are reliable, the court should consider the following factors:  Whether the statement was made spontaneously;  Whether the statement was made while the child was still upset or in pain from the alleged abuse;  Whether the language of the statement was likely to have been used by a child the age of the declarant;  Whether the allegation was made in response to a leading question;  Whether either the child or the hearsay witness had any bias against the defendant or any motive for lying;  Whether any other event occurred between the time of the abuse and the time of the statement that could account for the contents of the statement;  Whether more than one person heard the statement; and  The general character of the child. People v. District Court, 776 P.2d 1083 (Colo. 1989)

. A child is unavailable if he or she is not competent to testify. A child is not competent to testify if he or she is under ten years of age and is not able to describe or relate in language appropriate for a child of that age events or facts relating to the case. People v. District Court, 776 P.2d 1083 (Colo. 1989), C.R.S. § 13-90-106(1)(b)(II) . A child is also unavailable if testifying in open court in front of the criminal defendant would cause long-lasting emotional damage. Thomas v. People, 776 P.2d 1083 (Colo. 1990), C.R.S. § 18-3-413(4) . The child’s unavailability does not prevent the child’s hearsay statement from being admitted if the court finds sufficient corroborating evidence. Corroborating evidence is evidence, direct or circumstantial, that is independent of and supplementary to the child’s hearsay statement and that tends to confirm that the act described in the child’s statement actually occurred. Corroborating factors include:  Testimony from an eyewitness, other than the unavailable child- victim;  Statements of other children who were present when the act was committed against the victim;  Medical or scientific evidence indicating that the child was sexually assaulted;  Expert opinion evidence that the child-victim experienced post- traumatic stress consistent with the perpetration of the offense described by the child;

34  Other independent evidence, including competent and relevant expert opinion testimony, tending to establish the commission of the act described in the child’s statement. Crawford v. Washington, 541 U.S. 36 (2004), People v. Diefenderfer, 784 P.2d 741 (Colo. 1989), C.R.S. § 13-25-129(1)(b)(II), People v. Bowers, 801 P.2d 511 (Colo. 1990)

. If the statement is admitted at a jury trial, the court must instruct the jury in the final written instructions as follows:  During the proceeding the jury heard evidence repeating a child’s out-of-court statement. It is for the jury to determine the weight and credit to be given the statement. In making the determination, the jury shall consider the age and maturity of the child, the nature of the statement, the circumstances under which the statement was made, and any other relevant factor. C.R.S. § 13-25- 129(2)  Jury Trial o A Dependency and Neglect respondent has the right to have a jury decide the adjudication trial. The petitioner, guardian ad litem, or the court, on its own motion, may also request a jury. C.R.S. § 19-3-202(2) o If such a request is made, only a judge may preside over the jury trial. C.R.S. § 13-5- 201(3) o The request for a jury trial must be made when the petition allegations are denied. Otherwise, the right to a jury is deemed waived. C.R.J.P. 4.3(a) o However, if the party withdraws its demand for a jury trial, another party may request it. S.A.S. v. District Court, 623 P.2d 58 (Colo. 1981) o Six people serve on the jury. All respondents and the GAL are entitled to three peremptory challenges—no more than nine total. C.R.J.P. 4.3(b), C.R.S. § 19-3-202(2) o Jurors are selected as provided for the juvenile court. Challenges for cause are controlled by C.R.C.P. 47(e). C.R.S. § 13-8-122  Findings o A “neglected or dependent” child is defined as one who is: . Abandoned; . Mistreated or abused; . Lacking parental care; . Subject to an injurious home environment; . Neglected; . Homeless; . Beyond parental control; . Habitually abused. C.R.S. § 19-3-102

Each definition is discussed in detail below.

o Abandoned Child 35 . To abandon a child, the parents must have surrendered custody for at least six months, and must have manifested no intention to resume custody or failed to make permanent legal arrangements for the child’s care. A child is also abandoned if the parents are unknown for at least three months after reasonable efforts to find them. The court may make a finding based on abandonment even if a police hold or court order caused the initial separation. C.R.S. § 19-3-102(1)(a), People in Interest of M.C.C., 641 P.2d 306 (Colo. App. 1982) o Mistreated or Abused Child . To mistreat a child, parents, guardians or legal custodians must subject the child to mistreatment or abuse. C.R.S. § 19-3-102(1)(a) . Alternatively, they allow another to mistreat or abuse the child without taking lawful means to stop or prevent it. The abuse may be physical, sexual or emotional. People v. D.A.K., 198 Colo. 11, 596 P.2d 747 (Colo. 1979) . Abuse does not include the reasonable exercise of parental discipline. The question of reasonableness is one that must be decided by the trier of fact. Abuse also does not include reasonable acts necessary to subdue a child being taken into custody by a police officer. C.R.S. § 19-1-103(1)(b), People in the Interest of M.A.L., 37 Colo. App. 307, 592 P.2d 415 (Colo. App. 1976) . Evidence offered in sexual abuse cases may include medical evidence; the child may testify or others may testify to the child’s statements or “acting out” behavior; or the petitioner may offer expert testimony on the child’s psychological symptoms, perpetrator profiles and “sexual abuse accommodation syndrome.” The alleged perpetrator’s admissions against interest and prior acts also may be offered as proof. John E.B. Myers, Evidence in Child Abuse and Neglect Cases (3d ed. 1997) . However, in C.C.G., the Colorado Court of Appeals determined that medical proof the child had an enlarged vaginal opening alone was insufficient to support a Dependency and Neglect adjudication. The court concluded that possible causes of the enlargement and the inferences to be drawn from it were necessary. People in the Interest of C.C.G., 873 P.2d 41 (Colo. App. 1994) o Child Lacking Parental Care . The child lacks proper parental care because of the acts or omissions of a parent, guardian or legal custodian. The court may find a child neglected or dependent even if such lack of care is through no fault of the parent. For example, a child may lack proper parental care because of parent’s mental illness or developmental disability. C.R.S. § 19-3-102(1)(b), M.S. v. People, 812 P.2d 632 (Colo. 1991) . In S.B, the Colorado Court of Appeals determined a child to be “neglected or dependent” based on the father being bound over for first- degree murder of the mother. If the father were convicted, his daughter would lack proper parental care. If the father were exonerated, she would not be domiciled with him through no fault of the parent. The court

36 noted, however, that incarceration could not be the sole basis for a Dependency and Neglect finding. People in the Interest of S.B., 742 P.2d 935 (Colo. App. 1987) o Injurious Home Environment . The environment is injurious to the child’s welfare. C.R.S. § 19-3-102(1)(c) . In J.E.B., the Colorado Court of Appeals affirmed a Dependency and Neglect adjudication based on the mother’s chaotic home life, domestic violence, lack of a stable residence and exposure of children to drugs and sexual activities. People in the Interest of J.E.B., 854 P.2d 1372 (Colo. App. 1993) o Neglected Child . Neglect  A child is neglected when a parent, guardian or legal custodian fails or refuses to provide the child with proper or necessary: o Subsistence; o Education; o Medical care; or o Any other care necessary for the child’s health, guidance, or well-being. C.R.S. § 19-3-102(1)(d)

. Spiritual Treatment  Spiritual treatment may not be the sole basis for adjudicating a child Dependency and Neglect. Spiritual treatment applies when a parent, guardian or legal custodian treats the child’s medical condition only by a recognized method of spiritual healing. C.R.S. § 19-3-103(1)  A recognized method of spiritual healing is presumed in any of the following circumstances: o Fees and expenses are deductible under IRS rules; o Fees and expenses are reimbursable under Colorado health insurance policies; o It provides an equivalent success rate compared to medical care. C.R.S. § 19-3-103(2)

 What if the child’s life is in imminent danger from denial of medical care on religious grounds? In D.L.E., the Colorado Court of Appeals held that the mother’s failure to provide medical treatment for her son’s grand mal seizures was insufficient to support a Dependency and Neglect adjudication, given her legitimate use of spiritual healing. People in the Interest of D.L.E., 200 Colo. 244, 614 P.2d 873 (Colo. 1980)  However, mother’s failure did support an adjudication after her son’s health deteriorated to the point his life was endangered. People in the Interest of D.L.E., 645 P.2d 271 (Colo. 1982)

37  If the child’s medical condition places the child in a life- threatening situation, the court may order medical treatment for the child. The court may order a medical evaluation before making this determination. C.R.S. § 19-3-103(1)  If the parent, guardian or custodian inhibits or interferes with the provision of court-ordered medical treatment, the child is considered neglected. C.R.S. § 19-3-103(1) o Homeless Child . Through no fault of the parents, guardian or legal custodian, the child is homeless, without proper care, or not domiciled with them. C.R.S. § 19-3- 102(1)(e) . In T.R.W., the Colorado Court of Appeals held that a noncustodial mother’s admission that the child is not domiciled with her through no fault of her own is not sufficient to support a Dependency and Neglect adjudication against a custodial father. People in the Interest of T.R.W., 759 P.2d 768 (Colo. App. 1988) o Beyond Parental Control . The child has run away from home or is otherwise beyond the control of the parent, guardian or legal custodian. C.R.S. § 19-3-102(1)(f) . In C.C.G., the Colorado Court of Appeals held that a girl’s refusal to return to her mother after her father brought her to Dep’t of Human Services to disclose sexual abuse did not establish she was beyond the control of the parent. People in the Interest of C.C.G., 873 P.2d 41 (Colo. App. 1994) o Abused Child’s Sibling . Parents, guardians or legal custodians have subjected another child to an identifiable pattern of habitual abuse. Under this definition, the parents, guardians or legal custodians have subjected another child to either:  An identifiable pattern of habitual abuse; and  They have also been adjudicated Dependency and Neglect respondents based on physical or sexual abuse; or  A court has found they caused another child’s death; and  These findings must include the finding that the abuse poses a current threat to the child.

C.R.S. § 19-3-102(2)

. Where this is the case, the county department must engage in concurrent planning to expedite the permanency planning process. C.R.S. § 19-3-312(5) o Prospective Neglect . In D.L.R., the Colorado Supreme Court held that a child may be adjudicated dependent or neglected even if the parents have never had custody of the child. The mother suffered from schizophrenia, and experts testified she could not adequately parent the child. The court decided that proof of a present inability to parent met the statutory

38 requirement. The court also held a homeless infant placed in temporary care at birth met the statutory requirement of showing harm to the child. People in the Interest of D.L.R., 638 P.2d 39 (Colo. 1981) o Indian Child . If the child is an Indian child, special findings are also required. If Dep’t of Human Services has or seeks custody of an Indian child, it must prove by clear and convincing evidence with expert testimony that the child will suffer emotional or physical harm if returned home. It must also prove it made active efforts to prevent the child’s placement. 25 U.S.C.A. § 1912  Dismissal o If the allegations are not proven, the judge must dismiss the petition. The child must be returned home, and the respondent released from any temporary orders or restrictions. The court must notify the respondent that Dep’t of Human Services will expunge the child abuse report for purposes of employment or background checks. C.R.S. § 19-3-505(6)  Sustain the Petition o If the allegations are proven, the court must sustain the petition. The order must state that the child is neglected or dependent. C.R.S. § 19-3-505(7)(a)  One Parent’s Admission o One parent’s admission to a Dependency and Neglect petition may not support the other parent’s adjudication. People in the Interest of U.S., 121 P.3d 326 (Colo. App. 2005)  Deferred Adjudication o The court may also grant a deferred adjudication. This gives parents who have cooperated with services an opportunity to complete their rehabilitation without a Dependency and Neglect adjudication. All parties must consent. The parents must admit to at least one petition allegation. The court sets specific conditions and may transfer or continue temporary custody of the child. A deferred adjudication may be granted for six months, and the court may renew that grant for another six months following a court hearing. After the second six-month period expires, the court must dismiss or sustain the petition. C.R.S. § 19-3-505(5)  Costs o The court may order respondent to pay court costs, including guardian ad litem and expert witness fees, if the Dependency and Neglect petition is granted. The state may be ordered to pay such costs if the petition is unsuccessful. C.R.S. § 19-3- 312(3) o An adjudication order may not be appealed. It does not become a final judgment until a disposition order is issued. C.R.S. § 19-1-109(2)(c), People in the Interest of E.A., 638 P.2d 278 (Colo. 1981)

Disposition: After a dispositional hearing, the court may allow the parent to retain custody, transfer custody to a relative or Dep’t of Human Services, or set a hearing on termination of

39 parental rights. If the court does not terminate parental rights, it must approve an appropriate treatment plan.

 Dispositional Hearing o The issue at the dispositional hearing is what disposition would serve the child’s best interests. The dispositional hearing must be held if the court sustains the dependency and neglect (Dependency and Neglect) petition. C.R.S. § 19-1-103(43), E.O. v. People, 854 P.2d 797 (Colo. 1993) o The goal is to establish, if appropriate, a treatment plan to reunify the family. If a treatment plan is not appropriate, the goal is to secure the child a permanent home. There is a preference to keep siblings together. C.R.S. § 19-3-507(1) o The court may consider any reports or information on the child. This information may relate to the child’s mental, physical, or social history. Before the hearing, the county Dep’t of Human Services is required to submit a: . Social history report; . Family services list; . Evaluation for placement; . Reasonable efforts statement. C.R.S. § 19-3-507(1)

o The court should inform the parties of their right to cross-examine the report’s author. The court may also question the author if it is in the child’s best interests. C.R.S. § 19-1-107 o Relatives have a right to intervene after adjudication. This includes parents and grandparents. Foster parents who have had the child in their care for more than three months also may intervene as a matter of right. Each may intervene with or without counsel. C.R.S. § 19-3-507(5) o If possible, the court should hold the dispositional hearing the same day as the adjudicatory hearing. If the petition names a child under the age of six, the dispositional hearing must be held within thirty days of adjudication, unless good cause is shown to delay it, and the court finds it is in the child’s best interests. If the petition does not name a child under the age of six, the court must hold the dispositional hearing within forty-five days of adjudication. C.R.S. § 19-3-508(1), C.R.S. § 19-3-505(7)(b) o It is error to hold a dispositional hearing without first holding an adjudicatory hearing. People in the Interest of J.L., 121 P.3d 315 (Colo. App. 2005) o If the proposed disposition is termination of parental rights, a written motion to terminate must be filed and a separate hearing held. A hearing on the termination motion may not be held on the same date as the adjudicatory hearing. C.R.S. § 19-3-508(1)  Timeline o The court must issue a disposition order within forty-five days of adjudication. For children under six, the time limit is thirty days. These time

40 limits do not apply if the proposed disposition is termination. The court may enter a dispositional order the same day as the adjudication. C.R.S. § 19-3-508(1)  Continuances o The court may only grant a continuance if it is in the child’s best interests. C.R.S. § 19-3-508(1) o If the child is under six, the requesting party must show (1) good cause, and (2) the continuance is in the child’s best interests. C.R.S. § 19-3-507(3)(a) o The court’s should address both requirements, and the minimum time to resolve the problem. The court may also grant a continuance to receive reports and other evidence. The court should schedule a delayed dispositional hearing at the earliest available hearing date. C.R.S. § 19-3-507(3)(a)  Alternatives o The court may select among several alternatives. C.R.S. § 19-3-508(3)(b) . With parental custody, the court allows the child to remain with the parent or guardian with or without protective supervision under necessary and appropriate conditions. . With relative custody, the court transfers custody to a relative or other suitable person with or without protective supervision under necessary and appropriate conditions; . With Dep’t of Human Services custody, the court transfers custody to Dep’t of Human Services to place the child in a relative home, foster family, group care or other appropriate facility; . With termination, the court terminates one parent’s rights and makes any other appropriate disposition, or terminates both parents’ rights and orders Dep’t of Human Services to place the child for adoption.

C.R.S. § 19-3-508(1) and (3)

o The court may transfer custody to the noncustodial parent. The court may also order joint custody. It may then dismiss the case or order another appropriate disposition. L.A.G. v. People, 912 P.2d 1385 (Colo. 1996) o Protective supervision requires Dep’t of Human Services to monitor the placement. The court may also designate another agency or the court to provide supervision. C.R.S. § 19-1-103(87)  Kinship Care o Placement with a relative is preferred over foster care if such placement is in the child’s best interests. C.R.S. § 19-3-508(1)(b) and (3)(b.5) and (5)(b), 42 U.S.C.A. 671(a)(19) o The court may give preference to a grandparent who is appropriate, capable, willing and available to care for the child. C.R.S. § 19-1-115(1)(a) o The court must consider any credible evidence of past abuse or neglect by the grandparent. Credible evidence includes medical, school, police, central registry and court records. C.R.S. § 19-1-117.7 o The court may also grant the grandparent visitation unless parental rights are terminated. C.R.S. § 19-1-117

41 o Children may live with relatives under various legal arrangements. The court should choose the legal option carefully, because it affects Dep’t of Human Services’ ability to supervise, offer services, reunify with parents, and free a child for adoption. C.R.S. § 19-1-117 o Under the placement option, the court transfers custody to Dep’t of Human Services, and Dep’t of Human Services places the child with a relative. The placement option gives Dep’t of Human Services more authority to protect the child and a clear duty to work toward reunification. Dep’t of Human Services may pay the relative under this option. C.R.S. § 19-1-117 o Under the temporary custody option, the court transfers temporary custody to a relative. Under this option, Dep’t of Human Services must return to court to remove the child if the relative home becomes unsafe. Dep’t of Human Services may only supervise the placement if the court orders it. The court should make sure the relative will cooperate with the reunification plan. Dep’t of Human Services may be able to pay the relative under this option. C.R.S. § 19-1-117 o Under the permanent custody option, the court makes the relative the child’s legal custodian. It does not require termination of the parent-child legal relationship. This option, however, is not as permanent as adoption. The parent may request modification under changed circumstances. The parent must show the relative agrees with the change, the child has been integrated into the parent’s family with the relative’s consent or the present environment endangers the child’s physical health or significantly impairs the child’s emotional development. Adoption subsidies are not available. C.R.S. § 14-10-131(2) o Under the guardianship option, the court makes the relative the child’s guardian. This option does not require termination. The guardianship may be terminated, however, so this option is not as permanent as adoption. Adoption subsidies are not available. C.R.S. § 14-10-131(2) o Under the adoption option, the court allows the relative to adopt the child. This option requires termination of the parent-child legal relationship. This is the most permanent option. Adoption subsidies are available. C.R.S. § 14-10-131(2) o Colorado also has a special process called kinship adoption, which expedites an adoption when the birth parents have abandoned and failed to support a child living with relatives for more than one year. C.R.S. § 19-5-203(1)(j) o However, this process may only be used if there is no Dependency and Neglect case pending. C.R.S. § 19-1-103(71.5) o The court may not grant a relative adoption if the relative has ever been convicted of a felony in the area of child abuse or neglect, spousal abuse, a crime against a child, or a violent crime such as rape, sexual assault, or homicide. The court should require a criminal background check at the earliest possible time. If the criminal background check reveals a criminal conviction in any of the above areas, the court should look for a different adoptive placement or permanent living arrangement. C.R.S. § 19-5-210(4)  Final Judgment

42 o A disposition order may be appealed, because it is a final judgment. C.R.S. § 19-1- 109(2)(c), People in the Interest of E.A., 638 P.2d 278 (Colo. 1981)  Transfer of Custody o Separating the parent and child must be in the child’s best interests. C.R.S. § 19-3- 508(2) o This must be shown by a preponderance of the evidence before the court transfers temporary custody from a parent or guardian. The transfer of custody must be for a determinate period. C.R.S. § 19-1-115(4)(a), C.R.S. § 19-3-403 o There is a presumption that siblings be placed together if Dep’t of Human Services locates an appropriate, capable, willing and available joint placement. This presumption may be rebutted by a preponderance of the evidence that joint placement is not in the child’s best interests. C.R.S. § 19-3-402(2) (b) o Before the child’s removal, the court can ask the following questions: . Were services offered to the family before the child’s removal? . If not, was it reasonable not to offer services? . If preventive services were offered:  Were the services relevant to the family’s problems?  Were they adequate to address those problems?  Were the services made accessible to the family?  Were the efforts diligently made?  Were multiple services well coordinated?  Were there other cost-effective services that should have been offered? C.R.S. § 19-3-402(2)(b)

 Findings to Transfer Custody o The court should make reasonable efforts findings if custody is transferred from the parents or the child’s placement is continued. C.R.S. § 19-1-115(6), 42 U.S.C.A. § 671(a)(15) o Reasonable Efforts: . The court must find by preponderance of the evidence:  Separation of the child from the parent or guardian is in the best interests of the child;  Continuation of the child in the home would be contrary to the child’s best interests;  There has been compliance with reasonable efforts requirements regarding removal of the child from the home, as follows: o Reasonable efforts have been made to prevent or eliminate the need for removal of the child from the home; or o An emergency situation exists that requires the immediate temporary removal of the child from the home, and it is reasonable that preventive efforts not be provided due to the emergency situation; or

43 o Reasonable efforts to prevent the child’s removal from the home are not required because: . The parent has subjected the child to “aggravated circumstances” as described in section 19-3-604(1) and (2), such as someone abandoned, tortured, chronically abused, or sexually abused the child; or . The parental rights of the parent with respect to a sibling of the child have been involuntarily terminated; or . The parent has been convicted of any of the following crimes:  Murder of another child of the parent;  Voluntary manslaughter of another child of the parent;  Aiding, abetting, attempting, conspiring, or soliciting to commit the crimes or murder or voluntary manslaughter of the child or another child of the parent;  Felony assault resulting in serious bodily injury to the child or to another child of the parent. 42 U.S.C.A. § 671(a)(15), C.R.S. § 19-1-115(7), C.R.S. § 19-1-115(6)

o Reasonable efforts have been made or will be made to reunite the child and family; or o Efforts to reunite the child and family have failed;  Procedural safeguards with respect to parental rights have been applied in connection with the removal of the child from the home, a change in the child’s placement out of the home, and any determination affecting parental visitation. C.R.S. § 19-3-508(2)

. If the court waives reasonable efforts to reunite the family, it must hold a permanency hearing within thirty days. Dep’t of Human Services must make reasonable efforts to finalize a permanent home for the child. 45 C.F.R. § 1355.20 o Suggested Questions to Review Dep’t of Human Services Efforts . Were services offered to the family to return the child home safely? . If not, was it detrimental to the child to offer services? . If reunification services were offered:  What was the treatment plan?  Was it developed with the family’s participation?  Were the services offered relevant to the family’s problems?  Were they adequate to address those problems?

44  Were the services made accessible to the family?  Were the efforts diligently made?  Were multiple services well coordinated?  Were there other cost-effective services that should have been offered?  Did Dep’t of Human Services encourage visitation consistent with any court orders? 45 C.F.R. § 1355.20

o Indian Child Findings . To transfer custody of an Indian child, special findings are required. If Dep’t of Human Services has or seeks custody of an Indian child, it must prove by clear and convincing evidence with expert testimony that the child will suffer emotional or physical harm if returned home. It must also prove it made active efforts to prevent the placement. 25 U.S.C.A. § 1912 . In addition, the court must apply tribal placement preferences. 25 U.S.C.A. § 1915 o Dep’t of Human Services Placement Evaluation . The court must place the child in the most appropriate setting. The placement should meet the needs of the child, family and community. The court must consider Dep’t of Human Services’ evaluation for placement. C.R.S. § 19-3-508(5) . If the court does not follow Dep’t of Human Services’ recommendation, it must document the monthly cost difference and send the Chief Justice a copy of the order. C.R.S. § 19-3-508(5) o Placement Considerations . Child’s safety; . Least restrictive environment; . Appropriate to child’s needs; . Near parents/community; . Educational needs of child; . Cultural considerations; . Family’s religious preferences; . Availability and costs; . Sibling placement. 42 U.S.C.A. § 675(5)(A), C.R.S. § 19-1-107

o Custody to Dep’t of Human Services . If the court transfers custody to Dep’t of Human Services, it must order the parents to pay a fee to cover the costs of residential care. The order applies to the entire period of placement. The amount is based on the child support guidelines. C.R.S. § 19-1-115(4)(d), 42 U.S.C.A. § 671(a)(17)  Review of Placement

45 o The court must review the placement order within three months. C.R.S. § 19-1- 115(4)(a) o Subsequent review must be held every six months. The court may order these reviews to be administrative if the parties do not object. C.R.S. § 19-3-507(4), C.R.S. § 19-3-702(6)(a).  Treatment Plan o The court must consider whether an appropriate treatment plan can be devised. If it finds by clear and convincing evidence that no plan could address the parent’s unfitness, it must hold a permanency hearing within thirty days unless a termination motion is filed within that time. C.R.S. § 19-3-508(1)(e)(I) o Parental Unfitness to Dispense with Treatment Plan . Any one of the following situations may support Dep’t of Human Services dispensing with the treatment plan:  Abandonment: the parents have surrendered custody for at least six months and cannot be located;  Mental health: emotional or mental illness or mental deficiency renders the parent unable to meet the child’s ongoing needs within a reasonable time;  Incarceration: an incarcerated parent is ineligible for parole for at least six years (three years for a child under age six) from the date of the Dependency and Neglect adjudication.  Child’s injury: the child suffered a gravely disabling or disfiguring injury in a single incident;  Sibling’s injury: the child’s sibling suffered serious bodily injury or death due to proven parental abuse or neglect;  Habitual abuse: the child or another child has been subjected to a pattern of habitual abuse, and the court has adjudicated another child based on allegation of sexual or physical abuse, or a court has determined such abuse has caused the death of another child;  Sexual abuse: the child has been subjected to a pattern of sexual abuse;  Torture: torture or extreme cruelty to a child. C.R.S. § 19-3-604(1)(a), C.R.S. § 19-3-604(1)(b)(I), C.R.S. § 19-3-604(1)(b)(III), C.R.S. § 19-3-604(1)(b)(II), C.R.S. § 19-3-604(1)(b)(IV), C.R.S. § 19-3-604(1)( b) (V), C.R.S. § 19-3-604(1)(b)(VI), C.R.S. § 19-3-604(1)(b)(VII)

o Appropriate Treatment Plan . If the court does not terminate, it must approve a treatment plan. C.R.S. § 19-3-508(1) . An appropriate treatment plan is reasonably calculated to render the respondent fit to adequately parent the child within a reasonable time based on the child’s needs. It must involve the child and each named respondent, including any special respondents. C.R.S. § 19-1-103(10)

46 . If the child is under age six and the parent retains custody, the court must order a respondent parent to accept appropriate community services based on the social report recommendations. C.R.S. § 19-3-508(1)(a) . Plans to find the child another permanent home may be made at the same time as reunification efforts. This is called “concurrent planning.” The goals, though different, are achieved by the same actions since reunifications efforts are scrutinized at termination. C.R.S. § 19-3-508(7) o A Child with Mental or Developmental Disabilities . The court should order a mental health prescreening for children who appear to be mentally ill. C.R.S. § 19-3-507(2) . The court may order the child to be examined or treated. A physician, surgeon, psychiatrist or psychologist may examine or treat the child. Other special care may also be ordered. The court may place the child in a state Dep’t of Human Services facility until the professional in charge concludes treatment or placement is no longer necessary. C.R.S. § 19-3-508(1) . The court should refer any child who appears to be developmentally disabled to the nearest community-centered board for an eligibility determination. C.R.S. § 19-3-508(1)(d)(I) . If commitment is recommended, the court may commit a child to a mental health facility. If the prescreening report does not recommend commitment, the court must hold a hearing with notice to all parties before ordering commitment. A competent professional must testify to the child’s mental illness. C.R.S. § 19-3-508(1)(d)(I) . If the prescreening report is inadequate, incomplete or incorrect, the court may order seventy-two-hour treatment and evaluation after holding a hearing. The court may also make appropriate temporary custody orders before the hearing. C.R.S. § 19-3-508(1)(d)(I) . If treatment is no longer appropriate, the facility must notify the court. The court must hold a hearing within five court days. The court may also make appropriate temporary custody orders before the hearing. C.R.S. § 19-3-508(1)(d)(II) o Suggested Questions on the Treatment Plan . Does it address the reasons for the Dependency and Neglect adjudication? . Does it take into account barriers to overcoming these problems? . Does it include each respondent? . Does it address the child’s needs? . Is it likely to be successful? . Is it specific?

47 Involuntary Placement Review: Three months after a placement order, the court should hold a review hearing. The court should assess the need for placement, the appropriateness of the placement, progress under the treatment plan, efforts to reunify the family and the permanency planning goal. The court should review the placement at least every six months. C.R.S. § 19-1- 115(4)(a).

 Timeline o The court should hold a review hearing within three months of a placement order. Court review of an order placing a child out of the home is required. C.R.S. § 19-3-507(4) o Reviews are routinely held after a Dependency and Neglect disposition even if the child is at home. The court may hold more frequent reviews if desired, or if the parent, Dep’t of Human Services, GAL, or CASA requests it. C.R.S. § 19-3-702(8) o If the petition names a child under the age of six, the court must hold a permanency hearing within three months of the dispositional hearing, unless the court determines at the dispositional hearing that an appropriate treatment plan cannot be devised. C.R.S. § 19-3-702(2.5) o In that case, a permanency hearing must be held within thirty days. These children must be in a permanent home within twelve months. C.R.S. § 19-3-703  Before Hearing o County Dep’t of Human Services must submit a social study before the hearing. It evaluates the appropriateness of the placement and compliance with the treatment plan. If the materials submitted are insufficient, the court may adjourn the hearing for up to fourteen days. The author of the report must be prepared to testify about the report if anyone so requests. C.R.S. § 19-1-107(1) and (2) o The court should order parties to attend the review hearing. No party is required to attend the hearing unless so directed by the court. C.R.S. § 19-1-107(1) and (2)  Hearing o At the hearing, the court must determine if the placement is necessary. The court must also decide if the placement continues to be in the best interests of the child and the community. Preponderance of the evidence standard applies. C.R.S. § 19-1- 115(4)(b) o A trial court may not delegate to professionals its authority to decide when visitation between a child and a parent may occur. People in the Interest of B.C., 122 P.3d 1067 (Colo. App. 2005) o The court should evaluate the appropriateness of the placement. C.R.S. § 19-3-702(6) (a) o The placement should meet the needs of the child, family, and community. If the child is placed outside of Colorado, the court should decide if this is still appropriate and in the child’s best interests. Parents must be ordered to pay costs for out of home placement based upon their ability to pay. C.R.S. § 19-1-115(4)(d)  Suggested Questions on the Placement o The following questions may be asked about the placement. . Where is the child placed? 48 . Is the child safe? . How is the child doing? . Are the child’s special needs being met? . Is it the least restrictive appropriate placement? . If the child is placed out of state, is this still appropriate? . Is the child’s placement stable? . Is a child over age sixteen getting independent living services? o There is a rebuttable presumption that it is in the child’s best interest to be placed with the entire sibling group when out of home placement is recommended and an appropriate joint placement is located. This presumption may be rebutted by a preponderance of the evidence. C.R.S. § 19-3-213(1)(c)(I)  Compliance with the Treatment Plan o The court should assess compliance with the treatment plan and amend it if necessary. The court should determine if progress is being made to resolve the problems that led to placement. C.R.S. § 19-3-702(6) o Amending the treatment plan may be necessary when there have been significant changes, such as parents filing for divorce. A failure to amend the plan, however, is not fatal at a subsequent termination if the issues addressed remain the same. People in the Interest of E.H., 837 P.2d 284 (Colo. App. 1992  Suggested Questions on Compliance o The court may ask the following questions to determine compliance with the treatment plan. . What treatment plan requirements has the parent completed? . What requirements remain to be completed? . Have problems been remedied? . Have new problems arisen since the last hearing? . Are other services needed? . What services is the child receiving? . Are these services helping the child? . Is the parent visiting the child regularly? . What are the barriers to successful reunification? . What may the court do to help speed a permanent outcome?  Findings to Continue Custody o The court must make specific and reasonable efforts findings if it continues the child’s placement: . Continuation of the child in the home would be contrary to the child’s best interests C.R.S. § 19-3-508(2); . There has been compliance with reasonable efforts requirements regarding removal of the child from the home, as follows:  Reasonable efforts have been made to prevent or eliminate the need for removal of the child from the home; or  An emergency situation exists that requires the immediate temporary removal of the child from the home, and it is

49 reasonable that preventive efforts not be provided due to the emergency situation; or  Reasonable efforts to prevent the child’s removal from the home are not required because: o The parent has subjected the child to “aggravated circumstances” as described in sections 19-3-604(1) and (2), such as someone abandoned, tortured, chronically abused or sexually abused the child; or o The parental rights of the parent with respect to a sibling of the child have been involuntarily terminated; or o The parent has been convicted of any of the following crimes; 42 U.S.C.A. § 672(1)(1), C.R.S. § 19-1-115(6),

 Reasonable efforts have been made or will be made to reunite the child and family; or  Efforts to reunite the child and family have failed; 42 U.S.C.A. § 671(a)(15), C.R.S. § 19-1-115(7)

. Procedural safeguards with respect to parental rights have been applied in connection with the removal of the child from the home, a change in the child’s placement out of the home, and any determination affecting parental visitation. 42 U.S.C.A. § 678

 Suggested Questions on Efforts to Reunify the Family o If the court waives reasonable efforts to reunify the family it must hold a permanency hearing within thirty days. o The court may ask the following questions on reunifying the family. . Were the services offered relevant to the family’s problems? . Were they adequate to address these problems? . Were the services made accessible to the family? . Were the efforts diligently made? . Were multiple services well coordinated? . Were there other cost-effective services that should have been offered? . Did county Dep’t of Human Services encourage visitation consistent with any court orders?  Permanency Planning Goals o The court should review the permanency planning goal and project a likely date for the goal to be met. o Permanency planning goals include the following: . Family reunification; . Freeing the child for adoption; . Permanent relative placement;

50 . Permanent custody with an unrelated adult; . Another permanent safe placement.  Suggested Questions on Permanency Goals o The court should ask questions on the permanency planning goal that include the following: . What is the permanency goal? . How likely is this goal to be achieved? . When is this goal likely to be achieved? . Is this goal still in the child’s best interests? . Is Dep’t of Human Services doing concurrent planning? . If the goal is long-term foster care, why are other goals not in the child’s best interests? . Has Dep’t of Human Services made reasonable efforts to achieve the goal?  Checklist for the Review Hearing o Determine if the placement is still necessary; o Evaluate the appropriateness of the placement; o Assess progress under the treatment plan; o Decide if reasonable efforts were made to reunify the family; o Review the permanency goal.  The Order o The court may order the child be returned home. To do so, it must find placement is no longer necessary or in the best interests of the child or community. The court may also terminate the Dependency and Neglect proceeding, making written findings to support the decision. C.R.S. § 19-1-115(4)(b) o The court may continue the placement or order a new placement. The court should order a placement that most appropriately meets the needs of the child, family and community. The placement must be for a set period. The court must make written findings to support continued placement, and confirm or amend the treatment plan. C.R.S. § 19-1-115(6) o If the court orders a new placement, it must consider Dep’t of Human Services’ evaluation for placement. If the court does not follow Dep’t of Human Services’ recommendation, it must make specific findings of fact. Also, the court must document the monthly cost difference and send the Chief Justice a copy of the order. The court may not order an out-of-state placement if Dep’t of Human Services recommends an appropriate in-state facility that will accept the child. C.R.S. § 19-1-115(6) o Orders related to out of home placement are effective on the date that the order is signed by the court. A court is not to use the words “nunc pro tunc” in its written order, but is to use the phrase “the effective date of this order is.” C.R.S. § 19-1-115(6.7)

51 o The court should take reviews seriously by asking critical questions about treatment plan compliance and progress. Extra time in reviews may reduce the time children remain in out-of-home care. C.R.S. § 19-1-115(6.7)  Further Reviews o The next review must be held within six months. C.R.S. § 19-3-702(8)(a) o The court may order these reviews be administrative if the parties do not object. C.R.S. § 19-1-115(4)(c) o Where possible, the court should combine the next review with the permanency hearing. At the review, the court should make the same determinations as at the permanency hearing. More frequent reviews may be held if the court wishes, or the parent or guardian requests it. C.R.S. § 19-3-702(6)(a) o If all children named in the petition are six years or older, the court must hold a permanency hearing within twelve months of placement. If a child named in the petition is under the age of six, the court must hold a permanency hearing within three months of the dispositional hearing. After the permanency hearing, reviews are held every six months. C.R.S. § 19-3-702(1)

Voluntary Placement Review: The court must review children who are voluntarily placed for more than ninety days. At the hearing, the court must determine if placement is necessary and in the best interests of the child and community. The court then orders appropriate placement.

 Agreement o Parents or guardians may voluntarily place a child in foster care. No dependency or neglect (Dependency and Neglect) proceeding is brought. If the placement lasts ninety days or less, no court action is necessary. 42 U.S.C.A. § 672 o They must sign a written voluntary agreement. It specifies the child’s legal status. It also outlines the rights and obligations of the parent or guardian and county Dep’t of Human Services while the child is in care. 42 U.S.C.A. § 672 o Parents may revoke the agreement at any time. Dep’t of Human Services must return the child home unless it asks the court for temporary custody and files a Dependency and Neglect petition. 42 U.S.C.A. § 672 o For an Indian child, the agreement must be signed before a judge. The judge must certify that the terms and consequences of the consent were explained in detail and were fully understood by the parent or Indian custodian. This certificate must note whether the instrument was explained in English or was interpreted into another language the parent or Indian custodian understood. Any consent given before or within ten days after the Indian child’s birth is invalid. 25 U.S.C.A. § 1913  Petition for Review of Need for Placement o If the child will be placed over ninety days, Dep’t of Human Services must file a Petition for Review of Need for Placement (PRNP). The petition must be filed before the child has spent ninety days in care. 42 U.S.C.A. § 672

52 o The petition requests the court review the need for placement. This review is required for federal reimbursement. Statements in the petition may be made “upon information and belief.” 42 U.S.C.A. § 672 o The summons is served by certified mail. It summarizes the petition and recites the constitutional rights of the child and parent or guardian, including the right to counsel. 42 U.S.C.A. § 672 o Dep’t of Human Services must submit an evaluation of placement with the petition. It assesses the child’s needs and recommends a placement and treatment plan. If the materials submitted are insufficient, the court may adjourn the hearing for up to fourteen days. 42 U.S.C.A. § 672 o To be complete, the petition should include the following: . Title; . Child’s name, age and residence; . Parents, guardian or legal custodian’s names and residences (if these persons are unknown, the child’s nearest known relative); . “The child is or is about to be in voluntary placement;” . “It appears the placement will exceed ninety days;” . “Continuing placement is necessary and in the best interests of the child and community;” . Permanency hearing notice; . Right to court review; . Verification. 42 U.S.C.A. § 672

 Before Hearing o The court should order parties to attend the voluntary placement hearing, because no one is required to attend the hearing unless the court so directs. o The court should appoint the child a guardian ad litem (GAL) before the hearing. The court may only proceed without a GAL if it makes specific written findings that no useful purpose would be served by the appointment. o A GAL may be just as important for children in voluntary placement as for those subject to Dependency and Neglect petitions. Children placed voluntarily are in the same danger of remaining too long in foster care limbo or being moved from placement to placement. The GAL’s independent assessment and advocacy are essential.  Hearing o At the hearing, the court should determine if the placement is necessary, and also if it is in the best interests of the child and community. Preponderance of the evidence standard applies. C.R.S. § 27-10-103(3.3) o The court may approve a disabled child’s voluntary placement. The child’s disability may be physical, intellectual or emotional. Documentation must show the disability necessitates care and treatment for more than ninety days. C.R.S. § 27-10-103(3.3)

53 o A voluntary mental health commitment review may be held instead. If a child age fifteen or older consents to a mental health facility placement, the two month review by an independent professional meets the court review requirements for voluntary placement. The court may not handle the review as an informal adjustment. C.R.S. § 27-10-103(3.3)  The Order o The court may dismiss the petition. It must find the placement is not necessary or not in the best interests of the child or community. The court may order the child be returned home. C.R.S. § 19-1-115(4)(a) o The court may sustain the petition. It should order a placement that most appropriately meets the needs of the child, family and community. The placement must be for a set period. C.R.S. § 19-1-115(4)(a) o In ordering an appropriate placement, the court should consider Dep’t of Human Services’ evaluation for placement. If the court does not follow Dep’t of Human Services’ recommendation, it must make specific findings of fact. Also it must document the monthly cost difference and send the Chief Justice a copy of the order. The court may not order an out-of-state placement if Dep’t of Human Services recommends an appropriate in-state facility that will accept the child. The court has a responsibility to place the child in the most appropriate setting. If the recommended placement is not appropriate, the court can order Dep’t of Human Services to explore other options. 25 U.S.C.A. § 1915(b) o For an Indian child, the court must follow tribal placement preferences. Under the Indian Child Welfare Act, preference for foster care placement must be given, in the absence of good cause to the contrary, to: . Extended family members; . Foster homes approved by the tribes; . Licensed Indian foster homes; . Indian-approved institutions. 25 U.S.C.A. § 1915(b)

o The parents must be charged a fee for the placement. This fee is based on their ability to pay. After the child is released, parents are not required to continue payments to cover the entire cost of placement. M.S. v. People, 812 P.2d 632 (Colo. 1991)  Further Reviews o The court must review the voluntary placement order within three months. Subsequent reviews must be held every six months. The court may order these reviews as paper reviews or administrative reviews if the parties do not object. C.R.S. § 19-1-115(4)(a) o Within twelve months of placement, the court must hold a permanency hearing. These hearings are identical to those held for children placed under Dependency and Neglect orders. Subsequent reviews must be held every twelve months. 42 U.S.C.A. § 675(5)(C)

54 o Parents who voluntarily place their child may have their rights terminated. However, parents who voluntarily place a disabled child may not have their parental rights terminated solely because they cannot provide the special care and treatment the child needs. The child’s disability may be physical, intellectual, or emotional. In that case, a Dependency and Neglect petition is prerequisite to termination. 42 U.S.C.A. § 675(5)(C)

Permanency Hearing: For children who are six or older when the petition is filed, the court should hold a permanency hearing within twelve months of placement. For children who are under six when the petition is filed, the court should hold a permanency hearing within three months of the dispositional hearing.

 Timeline o If the petition does not name a child under the age of six, hold a permanency hearing within twelve months of a child entering foster care. 42 U.S.C.A. § 675(5)(C) o When possible, combine this with the six-month review of placement. C.R.S. § 19-3- 702(1), C.R.S. § 19-1-115(4)(c) o When does a child “enter foster care?” A child “enters foster care” when the court approves a change of custody of the child. C.R.S. § 19-3-702(1), 42 U.S.C.A. § 675(5)(F) o If the petition names a child under the age of six, the court should hold the permanency hearing within three months after the disposition. C.R.S. § 19-3-702(1) o These children must be in a permanent home within twelve months of placement. C.R.S. § 19-3-703 o If an appropriate treatment plan cannot be devised, the court should hold the permanency hearing within thirty days of the dispositional hearing. If at disposition the court finds by clear and convincing evidence that no plan could address the parent’s unfitness, the court must then hold a permanency hearing within thirty days unless a termination motion is filed. C.R.S. § 19-3-702(1), C.R.S. § 19-3-508(1)(e)(I) o If the court finds that reasonable efforts to reunify the parent and child are not required and a motion for termination has been appropriately filed, the court may combine the permanency hearing and termination hearing, and each of the determinations required by both hearings shall be made at the termination hearing. The court may also combine the permanency hearing and the periodic review hearing, but the determination required for both hearings must be made at the combined hearing. C.R.S. § 19-3-702(1) o The court should set the permanency hearing as well as the adjudicatory hearing as soon as the case is accepted for filing. By calendaring it early on, the court accomplishes two goals. First, the court emphasizes to all of the parties that time is of the essence, by advising the parents that the child must have a safe and permanent home by the time of the permanency hearing. Second, the court does not fail to set the permanency hearing within the timeline. C.R.S. § 19-3-702(1) 55  Before Hearing o Notice of the permanency hearing must be given. The notice must state the constitutional and legal rights of the child and the children’s parents or guardians. C.R.S. § 19-3-702(2) o In A.W.R., the Court of Appeals held that the juvenile court properly limited the role of the foster mother at the permanency planning hearing to providing testimony only as to the child’s physical, mental, and emotional conditions, although the foster mother had been allowed to intervene as a matter of right earlier in the case. People in the Interest of A.W.R., 17 P.3d 192 (Colo. App. 2000) o Because the permanent plan for the child was return home, the foster mother did not have a constitutionally protected liberty interest that entitled her to full participation in the proceedings. Id., citing Smith v. Org. of Foster Families, 431 U.S. 816 (1977) o However, A.W.R. is distinguished by C.M., which held that an award of permanent custody to a non-parent may be made even if a parent is fit. People in the Interest of C.M., 116 P.3d 1278 (Colo. App. 2005) o County Dep’t of Human Services must prepare a permanency plan. It must be submitted to all parties at least three court days before the hearing. C.R.S. § 19-3- 702(2) o The court should order the parties to attend the permanency hearing. Under federal and state law, a full hearing is required. C.R.S. § 19-3-702(1.5), 45 C.F.R. § 1355.20(a) o If Dep’t of Human Services is frequently not prepared for permanency hearings, the court facilitator may set up a staffing before each hearing to discuss permanency options for the child. Alternatively, the court may order the Dep’t of Human Services caseworker to conduct a staffing fifteen to thirty days before the hearing. C.R.S. § 19-3-702(1.5), 45 C.F.R. § 1355.20(a)  Permanency Hearing Options o The hearing’s purpose is to choose a permanent plan for the child. Unlike a review hearing, which assesses the placement and treatment plan, a permanency hearing is focused on making a final decision about where the child will grow up. The permanency plan depends on which of the following is likely: . The child is returned to the parent; . The child is not returned to the parent, but there is a substantial probability that the child will be returned to the parent within six months (based on the estimated date of return); . The child will not be returned to the parent within six months, and needs another permanency plan. C.R.S. § 19-3-702(2.5), (3) and (6), 42 U.S.C.A. § 675(5)(C)

o Permanency options include the following: . Return home: the child returns to the parents; . Adoption: the court orders Dep’t of Human Services to file for termination and free the child for adoption;

56 . Guardianship: the court refers the case to establish a legal guardianship for the child; . Allocation of parental responsibilities: the court allocates the decision- making responsibilities for the child; . Other planned permanent living arrangement: the court determines that the child’s best interests will be served by continuing in long term placement, such as with a fit and willing relative. C.R.S. § 19-3-702(2.5), (3) and (6), 42 U.S.C.A. § 675(5)(C)

57 Deciding Alternatives

o State and federal law provide five permanent placement options for children. It is preferable to include concurrent permanency plans in case one should fail. The health and safety of the child is the paramount concern in making the placement decision. 42 U.S.C.A. § 671(a)(15)(A) , 45 C.F.R. § 1356.21, C.R.S. § 19-3-702(4) o Return Child to Parent or Guardian . If a parent is working diligently on reunification, return home is the preferred option. Questions on whether to return the child to the parent or guardian include:  Have all services been explored and offered that would enable the parent or guardian to care for the child safely?  Has all relevant information about the case been collected, including updated treatment records and recommendations from treatment providers?  Does the child have special needs requiring additional services that may be provided in the home of the child’s parent or guardian? C.R.S. § 19-3-702

o Termination of Parental Rights . If a child cannot be safely returned home, adoption is the preferred placement, because it gives the child a sense of belonging to a stable family, it ends the need for Dep’t of Human Services oversight, and it is the most permanent option. Questions on whether to place the child for adoption include:  Is adoption suitable for this child?  To what degree is the child bonded with the biological parent?  Does the child wish to be adopted?  Have all relatives been explored?  Have caretakers received adoption counseling as assistance?  Is open adoption available and appropriate to allow ongoing contact with the biological parent? C.R.S. § 19-3-604

o Guardianship . Guardianship allows a person to make major life decisions affecting a child. This allows the guardian to have complete control of the child’s care without Dep’t of Human Services oversight. Guardianship is preferred when the child has bonded with a caretaker, but the caretaker does not want to adopt the child, or it would harm the child to terminate parental rights and pursue and adoption. Questions on whether to place the child in a guardianship include:

58  Did Dep’t of Human Services do a criminal records/central registry check on the relative?  Does the relative understand the child is not returning to parents?  Is the relative willing to commit to care for the child until age 18?  Can the relative meet the child’s special needs?  Can siblings be placed together with the relative?  If the child is old enough, what are the child’s wishes?  If it is in the child’s best interests, can the parents visit?  If parental contact is detrimental, can the relative prevent such contact?  Does the relative need financial assistance to care for the child? C.R.S. § 19-1-103(60)

. Application of the statutory standards for terminating guardianships and modifying allocations of parental responsibility does not violate a parent’s fundamental right to parent a child. In re Parental Responsibilities of M.J.K., ___ P.3d ___ (Colo. App., Nov. 13, 2008) o Allocation of Parental Responsibilities . A juvenile court may allocate parental responsibilities, parenting time, and child support matters. Questions on whether to allocate parental responsibilities include:  Is the decision not to do an adoption or guardianship fully informed, including understanding of the protections that adoption or guardianship would confer?  What is the quality and nature of the adult’s relationship to the child?  Are the relatives fully committed to providing a permanent, stable placement for the child?  How do they plan to integrate the child into their family?  What type of contact would they allow with the natural parent?  Is this the best caretaker for the child?  Has there been ongoing visitation with the child? C.R.S. § 14-10-124

. An award of permanent custody to a non-parent may be made even if a parent is not found to be unfit. People in the Interest of C.M., 116 P.3d 1278 (Colo. App. 2005) o Other Planned Permanent Living Arrangements . An alternate planned permanent living arrangement is meant to be a permanent placement for the child. This option is appropriate when there is a specific, long-term placement for the child. Long-term foster care is not an option under state or federal law. This option requires ongoing court reviews. Each review hearing should continue to rule out other permanent living options. Questions include:

59  Have all resources for the child been exhausted, such as attempts made to locate appropriate relatives or other people willing to care for the child on a long-term basis?  If the child needs to be in a residential setting, are the child’s needs so great that no permanent family setting would be appropriate?  Would additional services allow the child to move into a family setting? Cecelia Fiermonte, Reasonable Efforts under ASFA: The Judge’s Role in Determining the Permanency Plan, ABA Child Law Practice, Vol. 20, No. 2, April 2001

. This option may be appropriate for children who need group, restrictive, institutional, or residential care over an extended period of time. C.R.S. § 19-3-702(2.7) . It is not permissible to delay permanency planning for any child just to keep children together as a sibling group. C.R.S. § 19-3-702(2.7) . If all other permanency options are not in the child’s best interests, the court should consider permanent custody with an unrelated adult. 42 U.S.C.A. § 675(5)(C) . “Permanent” or “long-term” foster care is all too often not permanent or long-term. In some cases, typically when adolescents enter foster care or when a child is placed because of severe developmental disabilities, foster care is an appropriate long-term goal. It is particularly appropriate if the child has developed a connection to the foster parent, and the foster parent will not adopt or accept permanent custody. However, such permanency goals should be accepted only if there is no other possibility a child can be connected to a caring family. 42 U.S.C.A. § 675(5)(C)  Required Findings o The court may return the child home, finding the placement is no longer in the best interests of the child and community. C.R.S. § 19-3-702(3) o The court must state the reasons in the order. C.R.S. § 19-1-115(4)(b) o The court may continue placement. It must find a substantial probability that return home may be achieved within six months. The court must estimate the date for return, and set a second permanency hearing within six months. C.R.S. § 19-3-702(3) o If the court finds there is not a substantial probability the child will be returned home within six months, it must determine the placement goal for the child. C.R.S. § 19-3-702(4), C.R.S. § 19-3-702(3) and (3.5) o If the court continues the child’s placement out of the home, it must make the following findings: . Whether procedural safeguards with respect to parental rights have been applied in connection with any change in the child’s placement or any determination affecting parental visitation of the child;

60 . Whether reasonable efforts have been made to find a safe and permanent placement for the child; . Whether reasonable efforts have been made to finalize the permanency plan that is in effect at the time of the permanency hearing; . Whether any out-of-state placement continues to be appropriate and in the best interests of the child; . Whether the permanency plan includes independent living services if the child is sixteen years or older. C.R.S. § 19-3-702(4), C.R.S. § 19-3-702(3) and (3.5) o If the case is an expedited permanency planning case, the court may order Dep’t of Human Services to show cause why it should not file a motion to terminate parental rights. Dep’t of Human Services may show good cause under any of the following: . The criteria for termination have not yet been met; or . The parents or guardians have maintained regular parenting time and contact with the child, and the child would benefit from continuing this relationship. C.R.S. § 19-3-702(2.5) o The court may also order Dep’t of Human Services to show cause why it should not file a motion to terminate parental rights for older children. Good cause not to file a motion to terminate for older children includes: . The criteria for termination have not yet been met; or . The parent maintains regular parenting time and contact with the child, who would benefit from continuing this relationship; or . A child age twelve or older objects to the termination; or . Foster parents are willing and capable of providing the child with a stable and permanent home, but will not adopt the child because of exceptional circumstances that do not include an unwillingness to accept legal responsibility. C.R.S. § 19-3-702(5)(a) o Dep’t of Human Services must file a termination motion in any of the following circumstances: . The child has been in foster care for fifteen of the most recent twenty-two months, unless;  The child is placed with a relative;  Dep’t of Human Services has documented in the case plan that filing such a motion would not be in the best interests of the child;  Services identified as necessary for the safe return of the child to the child’s home have not been provided to the family, consistent with the time period in the case plan; or

61  The child has been in foster care under the responsibility of the county department of such period of time due to circumstances beyond the control of the parent, such as incarceration of the parent for a reasonable period of time, court delays or continuances that are not attributable to the parent, or such other reasonable circumstances that the court finds are beyond the control of the parent.  The parent has subjected the child to “aggravated circumstances” as described in sections 19-3-604(1) and (2), such as someone has abandoned, tortured, chronically abused, or sexually abused the child;  The parental rights of the parent with respect to a sibling have been involuntarily terminated;  The parent has been convicted of any of the following: o Murder of another child of the parent; o Voluntary manslaughter of another child of the parent; o Aiding, abetting, attempting, conspiring, or soliciting to commit the crimes of murder or voluntary manslaughter of the child or of another child of the parent; o Felony assault resulting in serious bodily injury to the child or to another child of the parent. 42 U.S.C.A. § 675(5)(E), C.R.S. § 19-1-115(6) and (7) , C.R.S. § 19-3-604(1) and (2)

o Note that reasonable efforts findings are not required in most of these circumstances. C.R.S. § 19-3-702(4) o The court may decide on other future placement alternatives such as referring the child for legal guardianship, custody, or placement with a fit and willing relative. A final, but least desirable option, is placement in a permanent living arrangement. C.R.S. § 19-3-702(4) o Under state law, a court may award permanent guardianship to foster parents, and suspend parental rights until a child reaches the age of eighteen. The biological parent may retain the right to seek a modification of the order to regain custody and parenting time. L.L. v. People, 10 P.3d 1271 (Colo. 2000) o The court must be provided with documents showing a compelling reason for establishing a permanency plan that is not reunification, adoption, or legal guardianship. C.R.S. § 19-3-702(40)  Permanent Home o If the petition names a child under the age of six, the child must be in a permanent home within twelve months of placement out of the home. A permanent home includes the child’s reunification with the child’s parents; placement with a relative, or with a potential adoptive parent; or permanent custody in the least restrictive level of care. C.R.S. § 19-3-703 o The court may only extend the time for a child being placed in a permanent home if it is shown by clear and convincing evidence that: 62 . Reasonable efforts were made to find the child an appropriate permanent home; and . An appropriate permanent home is not currently available; or . A successful permanent placement is improbable because of the child’s mental or physical needs or conditions. C.R.S. § 19-3-703

o The court may order that the child remain with the foster parents, if separating from the foster parents will be seriously detrimental to the child’s emotional well-being because of psychological bonding. The foster parents must be willing to provide the child with a stable and permanent environment. C.R.S. § 19-3-702(5) (b) o Independent living is not a permanency goal under federal or Colorado law. Independent living is a federally funded program to make sure that children in foster care are learning the skills they will need as adults. It helps children age sixteen and older finish high school, get vocational training, and learn life skills like budgeting. While these services are important, they do not replace the child’s need for a permanent family. 42 U.S.C.A. § 677 o The court should order Dep’t of Human Services to make reasonable efforts to achieve the permanency goal. If reunification is no longer the goal, Dep’t of Human Services must make reasonable efforts to place the child in a permanent home in a timely manner. C.R.S. § 19-3-702(6)(a) o It must also complete the steps necessary to finalize the placement. 42 U.S.C.A. § 671(a)(15)(C) o The Adoption and Safe Families Act of 1997 (ASFA) requires that reasonable efforts be made to prevent or eliminate the need for placement. Under ASFA, Dep’t of Human Services must show it has made reasonable efforts to achieve the permanency goal. The court should require Dep’t of Human Services to do so. 42 U.S.C.A. § 671(a)(15)(C)  Further Reviews o Subsequent reviews must be held every six months. For voluntary placements, reviews are held every twelve months. 42 U.S.C.A. § 675(5)(C) o The court may order these reviews to be paper reviews or administrative review if the parties do not object. The court would make the same determinations as at a permanency hearing. The court may hold more frequent reviews if desired, or if the parent, Dep’t of Human Services, the GAL, or CASA requests it. C.R.S. § 19-3- 702(8), C.R.S. § 19-1-115(4)(c) o Six-month reviews are also required for children under the age of six. The caseworker and GAL must report on services to complete the child’s permanent placement. The court may only extend the time of the review if it is shown by clear and convincing evidence to be in the child’s best interests. C.R.S. § 19-3-703

63 Criteria for Termination: The court may terminate the parent-child legal relationship if the parents abandon the child, are unfit, or fail to progress under the treatment plan.

 Definitions o Termination frees the child for adoption. Termination of the parent-child legal relationship means the court permanently eliminates all parental rights and duties. C.R.S. § 19-1-103(107) o This includes residual parental rights and responsibilities, such as the: . Right to consent to adoption; . Right to visit the child; . Right to determine the child’s religion; . Duty to pay future child support. C.R.S. § 19-1-103(93)

o After termination, the parent is not entitled to notice of adoption. The parent has no right to participate in the adoption proceeding. A termination order divests the parent and child of all legal rights, powers, privileges, immunities, duties and obligations to each other. C.R.S. § 19-3-608 o The child can still inherit from the biological parent. The child also remains eligible after termination for any third-party benefits from any agency, state, Indian tribe, or the U.S. government. However, these rights end after a final adoption decree. C.R.S. § 19-3-608(1) and (2)  Criteria o There are three termination criteria: abandonment, parental unfitness, and failure to progress. C.R.S. § 19-3-604(1) o Abandonment . The court may terminate the parent-child legal relationship if the parents abandon the child. The parents must have surrendered custody for at least six months. They must not have manifested a firm intent to the child, court, or caregiver to resume or obtain custody or make permanent legal arrangements for the child’s care. C.R.S. § 19-3-604(1) . Abandonment can also be found if the parent is unknown. The identity of the parent must be unknown for at least three months. The court must also find reasonable efforts were made to locate the parent. C.R.S. § 19-3- 604(1)(a)(II) . An affidavit must be filed at least ten days before the hearing, stating what efforts were made to locate the parent who is subject to the motion. C.R.S. § 19-3-603 . The child must have been found to be neglected or dependent. A dependency and neglect (Dependency and Neglect) adjudication is a prerequisite for termination under both types of abandonment. C.R.S. § 19- 3-604(1)(a)

64 . A trial court may terminate parental rights on the basis of one or more statutory grounds established by clear and convincing evidence. People in the Interest of D.C.-M.S., 111 P.3d 559 (Colo. App. 2005) o Parental Unfitness . The court may terminate the parent-child legal relationship if the parent is unfit. The child must have been adjudicated neglected or dependent. The court must find that no treatment plan could address the parent’s unfitness. Unfitness may be based on:  Mental illness;  Child’s injury;  Incarceration;  Sibling’s injury;  Habitual abuse;  Sexual abuse;  Torture. C.R.S. § 19-3-604(1)(b)

. Mental illness: emotional or mental illness or mental deficiency renders the parent unable to meet the child’s ongoing needs within a reasonable time. For example, a sexually abusive father, diagnosed with antisocial personality disorder, not amenable to treatment, had his rights terminated under this definition. C.R.S. § 19-3-604(1)(b)(I), People in the Interest of N.F., 820 P.2d 1128 (Colo. App. 1991). . Child’s injury: when the child suffered serious bodily injury or a disfiguring injury. C.R.S. § 19-3-604(1)(b)(II) and (2)(d) . Incarceration: when an incarcerated parent is ineligible for parole for at least six years from the date of the Dependency and Neglect adjudication. For a child under age six, the incarcerated parent is ineligible for parole for at least three years. The court does not have to wait for the parent’s criminal appeals to be resolved to terminate under this definition. C.R.S. § 19-3-604(1)(b)(III), People in the Interest of T.T., 845 P.2d 539 (Colo. App. 1992) . Sibling’s injury: when the child’s sibling suffered serious bodily injury or death due to proven parental abuse or neglect. C.R.S. § 19-3-604(1)(b)(IV) and (2)(g) . Habitual abuse: when another child has been subjected to an identifiable pattern of habitual abuse. The adjudication of dependence or neglect was based on sexual or physical abuse, or the parent was convicted of that child’s death. This definition is the same as a Dependency and Neglect adjudication based on “abused child’s sibling.” C.R.S. § 19-3-604(1)(b)(V), C.R.S. § 19-3-102(2) . Sexual abuse: where the child has been subjected to an identifiable pattern of sexual abuse. C.R.S. § 19-3-604(1)(b)(VI)

65 . Torture: where either parent has tortured a child or subjected a child to extreme cruelty. C.R.S. § 19-3-604(1)(b)(VII) . Termination of the parent-child relationship is not designed to punish the parent, but to give the child an opportunity for a new permanent caregiver. As a result, some parents will lose their rights through no fault of their own. People in the Interest of M.H., 683 P.2d 807 (Colo. App. 1984) . The court in M.H. said it best: “This case presents yet another situation wherein a natural mother loves her child, but is unable, through no specific fault of her own, to provide the child with the necessary parental care to enable that child to thrive, grow, and reach maturity. It was to ensure these benefits for a child under these circumstances that the statute was enacted.” People in the Interest of M.H., 683 P.2d 807 (Colo. App. 1984) o Failure to Progress . The court may terminate if the parent fails to progress under the treatment plan. Failure to progress may be based on these four elements:  The child has been adjudicated neglected or dependent; and  The court-ordered treatment plan has failed; and  The parent is unfit; and  The parent’s conduct or condition is unlikely to change within a reasonable time. C.R.S. § 19-3-604(1)(c)

. The court-ordered treatment plan has failed: Either the parent has failed to reasonably comply with the plan, or the plan has not been successful. It has failed if the parent has missed visitation without good cause. It has also failed if the parent’s problems have not adequately improved, including the parent’s relationship with the child. You must find the plan has failed if the parent, despite intervention and treatment, is unable or unwilling to provide “reasonable parental care.” C.R.S. § 19-3-604(1)(c)(I) . “ Reasonable parental care” includes, at minimum, nurturing and safe parenting sufficiently adequate to meet the child’s physical, emotional and mental needs and conditions. C.R.S. § 19-3-604(2) . The treatment plan must be appropriate. The appropriateness of the treatment plan is determined by the likelihood of its success in achieving family reunification. People in the Interest of L.G., 737 P.2d 431 (Colo. App. 1987) . The plan itself does not have to contain explicit measures of success. People in the Interest of C.A.K., 652 P.2d 603 (Colo. 1982) . It must consider, however, the parent’s specific circumstances. People in the Interest of B.J.D., 626 P.2d 727 (Colo. App. 1981) . The parent is unfit: The court must find that continuing the parent-child relationship is likely to result in grave risk of death of serious injury to the child or that the parent’s conduct or condition renders the parent unable or unwilling to give the child reasonable parental care. C.R.S. § 19-3- 604(1)(c)(II)

66 . This care is to include, at a minimum, nurturing and safe parenting sufficiently adequate to meet the child’s physical, emotional and mental health needs and conditions. In addition, the parent’s conduct or condition must be unlikely to change within a reasonable time. C.R.S. § 19- 3-604(2) . Reasonable time is based on the child’s needs. People in the Interest of T.S.B., 757 P.2d 1112 (Colo. App. 1988) . The court may determine “unfitness” based on the definitions for “parental unfitness” termination criteria, based on any one of the following:  Abusive conduct;  Violent history;  Serious bodily injury to the child;  Single incident that threatens life of the child;  Substance abuse;  Child neglect;  Sibling’s injury or death;  Felony assault;  Prior involvement with Dep’t of Human Services;  Reasonable efforts failed;  Fifteen months in care;  Two prior adjudications;  Prior termination of parental rights;  Other factors. . Abusive conduct: the parent’s conduct toward the child has been of a physical or sexually abusive nature. C.R.S. § 19-3-604(2)(b) , C.R.S. § 19-5- 105(3.1)(a)(III) . Violent history: the parent has a history of violent behavior, such as domestic abuse. C.R.S. § 19-3-604(2)(c), C.R.S. § 19-5-105(3.1)(a)(IV) . Serious injury to child or an incident that threatens the life of child: the injury caused serious bodily injury or disfigurement. C.R.S. § 19-3-604(2)(d) . Substance abuse: the parent’s excessive use of intoxicating liquors or controlled substances has affected the parent’s ability to care and provide for the child. C.R.S. § 19-3-604(2)(e), C.R.S. § 19-5-105(3.1)(a)(V), C.R.S. § 12-22- 303(7) . Child neglect: the parent has neglected the child. Neglect is the failure or refusal to provide the child with proper or necessary subsistence, education, medical care, or any other care necessary for the child’s health, guidance or well-being. C.R.S. § 19-3-604(2)(f), C.R.S. § 19-5-105(3.1)(a)(VI), C.R.S. § 19-3-102(1)(d) . Sibling’s injury or death: the parent has committed, aided or abetted, attempted, conspired, or solicited the murder or voluntary manslaughter of the child’s sibling. C.R.S. § 19-3-604(2)(g)

67 . Felony assault: the parent has committed a felony assault that resulted in serious bodily injury to the child or to another child of the parent. C.R.S. § 19-3-604(2)(j) . Prior involvement: the parent has had prior involvement with county Dep’t of Human Services concerning an abuse or neglect incident and a subsequent incident of abuse or neglect has occurred. C.R.S. § 19-3-604(2)(i) . Reasonable efforts failed: child-caring agencies have made reasonable efforts that have been unable to rehabilitate the parent. C.R.S. § 19-3-604(2) (h) . Fifteen months in care: the child has been in Dep’t of Human Services care for fifteen of the last twenty-two months unless:  The child is in relative care;  Dep’t of Human Services has documented in a case plan available for court review that termination is not in the child’s best interests;  Services necessary to the child’s safe return have not been provided to the family, consistent with the time period in the case plan (unless the court waived reasonable efforts);  The child’s stay in care has been extended due to circumstances beyond the parent’s control such as incarceration, court delays, or continuances not requested by the parent. C.R.S. § 19-3-604(2)(k)

. Two prior adjudications: on at least two prior occasions, a child in the custody of the parent has been adjudicated dependent or neglected. C.R.S. § 19-3-604(2)(l) . One prior termination: on at least one occasion a parent has had their parent-child legal relationship terminated. C.R.S. § 19-3-604(2)(m) . Other factors: the list above is not exclusive. The court may also consider other factors that point to the parent’s unfitness. C.R.S. § 19-3-604(2) . At the termination hearing, evidence of polygraph examinations are inadmissible, and a trial court should not consider the opinions of an expert who bases an opinion on polygraph evidence. In the Interest of M.M., ___ P.3d ___ (Colo. App., April 16, 2009) . Even parents who comply with the treatment plan may have their parental rights terminated if they do not make progress. For example, in M.W., the mother suffered from long-term mental illness, but had stabilized on medication, and was able to live and work on her own. She also had maintained regular contact with her daughter. Despite her commendable progress, however, she could not meet her daughter’s needs, and her rights were terminated. People in the Interest of M.W., 796 P.2d 66 (Colo. App. 1990)  Additional Findings

68 o When deciding whether to terminate the parent-child legal relationship, the court must give primary consideration to the physical, mental and emotional conditions and needs of the child. C.R.S. § 19-3-604(3)  No Less Drastic Alternatives o The Department must evaluate and rule out a reasonable number of identified placements. The trial court must consider and eliminate less drastic alternatives. People in the Interest of M.T., 121 P.3d 309 (Colo. App. 2005)  Special Issues o The Americans with Disabilities Act (ADA) does not offer a defense to a termination motion. This is because the focus of the proceedings is the child’s welfare and need for basic level of care. People in the Interest of T.B., 12 P.3d 1221 (Colo. App. 2000) o For an Indian child, a qualified expert must show that continuing custody with the parents would result in serious emotional or physical damage to the child, and that Dep’t of Human Services made “active efforts” to reunify the family. 25 U.S.C. § 1912(f) o Parents who voluntarily place their child may have their rights terminated. They cannot be found to have abandoned the child, however, if they remain involved in the child’s life. In addition, parents who voluntarily place a disabled child cannot have their parental rights terminated solely because they cannot provide the special care and treatment the child needs. The child’s disability may be physical, intellectual or emotional. C.R.S. § 19-3-604(1)(a) o In deciding whether to grant a motion to terminate the parent-child relationship, the court must “give primary consideration to the physical, mental, and emotional conditions and needs of the child.” Some judicial officers are reticent to grant a motion to terminate if an adoptive home has not been identified, reasoning that they do not want to make the child an orphan if an adoption is not imminent. If the court does not order termination, however, when all of the elements of the motion have been proven by clear and convincing evidence, the court is allowing the child to continue a nominal parent-child relationship with parents who have been determined to be unfit. This may eliminate any chance the child will secure an adoptive home. C.R.S. § 19-3-604(3) o The Adoption Exchange, an agency dedicated to the exchange of resources on behalf of dozens of adoption agencies in the Rocky Mountain region, fields over 9,000 phone calls per year on adoption. Many of these calls are from prospective parents, who are eager to adopt waiting children. C.R.S. § 19-3-604(3)

Termination Procedures: After a motion to terminate parental rights is filed, the court must advise parents of their rights. If the termination criteria are proven by clear and convincing evidence at the hearing, the court may terminate the parent-child legal relationship.

 Motion to Terminate Parental Rights

69 o A party files a motion to terminate parental rights. The motion must be in writing and allege the factual grounds. It must be filed at least thirty days before the hearing. A separate motion is not required if termination is requested in the dependency and neglect (Dependency and Neglect) petition. C.R.S. § 19-3-602(1) o Under the UCCJEA, if a child custody action was pending in another state when the Dependency and Neglect case was filed in Colorado, the juvenile court would not have continuing jurisdiction to hear the termination hearing in Colorado, unless the action in the other state ended. People in the Interest of M.C., 94 P.3d 1220 (Colo. App. 2004), C.R.S. § 14-13-204(3) o To avoid adoption delays, the court should check to make sure the termination motion includes both parents. This is especially important if the other parent is missing or unknown. Also, it is important that both parents receive notice of the Dependency and Neglect adjudication hearing. The court should also determine whether the case must comply with ICWA requirements. . Dep’t of Human Services must file a termination motion in any of the following circumstances: . The child has been in foster care for fifteen of the most recent twenty-two months, unless:  The child is placed with a relative;  Dep’t of Human Services has documented in the case plan that filing such a motion would not be in the best interests of the child;  Services identified as necessary for the safe return of the child to the child’s home have not been provided to the family consistent with the time period in the case plan; or  The child has been in foster care under the responsibility of the county department for such period of time due to circumstances beyond the control of the parent, such as incarceration of the parent for a reasonable period of time, court delays or continuances that are not attributable to the parent, or such other reasonable circumstances that the court finds are beyond the control of the parent. 42 U.S.C. § 675(5)(E), C.R.S. § 19-1-115(6) and (7)

. The parent has subjected the child to “aggravated circumstances” as described in sections 19-3-604(1) and (2), such as someone abandoned, tortured, chronically abused or sexually abused the child; . The parental rights of the parent with respect to a sibling have been involuntarily terminated; . The parent has been convicted of any of the following:  Murder of another child of the parent;  Voluntary manslaughter of another child of the parent;

70  Aiding, abetting, attempting, conspiring, or soliciting to commit the crimes of murder or voluntary manslaughter of the child or of another child of the parent; or  Felony assault resulting in serious bodily injury to the child or to another child of the parent. C.R.S. § 19-3-604(1) and (2)

o Note that reasonable efforts findings are not required in most of these circumstances. C.R.S. § 19-3-603, People in the Interest of K.C., 685 P.2d 1377 (Colo. App. 1984) o For missing parents, an affidavit of unknown whereabouts is required. If the motion alleges abandonment by an unknown parent, the party who initiated the termination must file an affidavit stating specifically what efforts were made to find the parent. It must be filed no later than ten days before the hearing. People in the Interest of K.C., 685 P.2d 1377 (Colo. App. 1984) o The termination statute is not unconstitutional because it lacks notice requirements. People in the Interest of M.M., 726 P.2d 1108 (Colo. 1986) o Notice of a motion to terminate may be provided to the party or to the party’s attorney of record. There is no requirement to serve both. People in the Interest of J.E.B., 854 P.2d 1372 (Colo. App. 1993) o The court may require the caseworker to submit a letter detailing the evidence and reasoning that led to the conclusion that the court should grant the motion to terminate the parent-child relationship. This letter may help all parties to be prepared, and often promotes settlement discussions that serve the child’s best interests. People in the Interest of J.E.B., 854 P.2d 1372 (Colo. App. 1993)  Advisement o After a motion to terminate parental rights is filed, the court must advise parents of their rights. In termination actions, parents have a number of rights. o Termination Advisement Checklist . Right to counsel; . Right to court-appointed counsel if parent is indigent; . Right to a GAL if the parent is a minor or incompetent; . Right to a court-appointed independent expert, if indigent; . Right to a hearing before a judge; . Right to cross-examine witnesses; . Right to testify on their own behalf; . Right to subpoena witnesses to testify for them; . Right to burden of proof on the movant; . Right to proof by clear and convincing evidence; . Right to appeal o Parent-Expert Privilege . Indigent parents have a right to a court-appointed expert. The parent chooses the expert, subject to the court’s review and approval. The state

71 pays for the expert. All ordered evaluations must be made available to the attorneys at least fifteen days before the hearing. C.R.S. § 19-3-607 . Parents do not have a right to more than one court-appointed expert if they are dissatisfied with the first expert. People in the Interest of T.R.S., 717 P.2d 1025 (Colo. App. 1986) . A parent’s communications with the court-appointed expert are confidential. They are protected by attorney-client privilege. The parent may prevent the expert from testifying in support of termination of the parent-child legal relationship. B.B. v. People, 785 P.2d 132 (Colo. 1990) . If the expert’s evaluation includes the child as well as the parent, however, communications are not protected under attorney-client privilege. In this situation, the expert may testify on the county’s behalf. D.A.S. v. People, 863 P.2d 291 (Colo. 1993) o Rights the Parents Do Not Have . Parents do not have a right to have a jury decide a termination hearing. C.R.S. § 19-3-602(4) . This right only applies to a Dependency and Neglect adjudication. C.R.S. § 19-3-202(2) . An imprisoned parent does not have a right to be transported to the hearing at state expense. Catholic Charities and Cmty. Servs. in the Interest of C.C.G., 942 P.2d 1380 (Colo. App. 1997) . Due process or other constitutional guarantees do not require the respondent’s presence at the hearing if the respondent has the opportunity to appear through counsel and the respondent is given the opportunity to present evidence and cross-examine witnesses through deposition, affidavit or otherwise. People in the Interest of C.G., 885 P.2d 355 (Colo. App. 1994)  Hearing o The court should consider termination at a separate hearing. C.R.S. § 19-3-602(1) o Termination may not be considered at the Dependency and Neglect adjudicatory hearing. It may be considered at a separate dispositional hearing. C.R.S. § 19-3- 508(3) o Expedited Permanency Planning . In expedited permanency planning cases, the court shall hear the motion for termination within 120 days after such motion is filed, and shall not grant a delay unless good cause is shown, and unless the court finds that the best interests of the child will be served by granting a delay. C.R.S. § 19- 3-104, C.R.S. § 19-3-602(1), People in the Interest of D.M., 186 P.3d 101 (Colo. App. 2008) o Reports and Witnesses . The court should admit reports on the child into evidence. This includes any materials on the child’s mental, physical, or social history. Any party may request the report’s author for direct or cross-examination. The court also may require the author to be present if it is in the child’s best

72 interests. If necessary, the court also may order the child evaluated before the hearing. C.R.S. § 19-3-604(3) . Witnesses may testify to the parent’s progress. The child’s physician, therapist, foster parent, teacher, religious instructor, CASA, or caseworker may testify to family progress under the treatment plan. C.R.S. § 19-3-604(1)(c)(I)(B) o Requirements for the Hearing . The standard of proof is clear and convincing evidence. C.R.S. § 19-3-604(1), Santosky v. Kramer, 455 U.S. 745 (1982); People in the Interest of A.M.D., 648 P.2d 625 (Colo. 1982) . The clear and convincing evidence standard also applies to summary judgment motions in termination actions. People in the Interest of A.E., 914 P.2d 534 (Colo. App. 1996) . The court’s excusing of the appearance of a guardian ad litem at a termination hearing may be harmless without a showing that the respondent parent’s interests were negatively affected. People in the Interest of D.L.C., 70 P.3d 584 (Colo. App. 2003) . Termination criteria include:  abandonment, parental unfitness, or failure to progress;  the child was found to be neglected or dependent by a preponderance of the evidence, the existence of the adjudication order must be shown;  the court must consider and reject less drastic alternatives; and (4) the court should give primary consideration to the child, and consider the child’s physical, mental, and emotional conditions and needs. C.R.S. § 19-3-604(1), People in the Interest of A.M.D., 648 P.2d 625 (Colo. 1982), C.R.S. § 19-3-604(3)

. For an Indian child, the court must make special findings. Parents of an Indian child may not have their rights terminated unless it is shown beyond a reasonable doubt that continuing custody with the parents would result in serious emotional or physical damage to the child. A qualified expert witness must testify to this. Dep’t of Human Services must also show it made “active efforts” to reunify the family. 25 U.S.C. § 1912 . The court should strictly comply with all statutory requirements, especially procedural requirements. Decisions overturned on appeal create unacceptable delays to achieving permanency for children. o Placement of Child . County Dep’t of Human Services must evaluate a reasonable number of persons suggested to it as possible placements, but there is no statute, rule, or other authority that requires the department to make special inquiry and independently identify and evaluate other possible

73 placements within or outside of the family. People in the Interest of D.B.-J., 89 P.3d 530 (Colo. App. 2004) . A request to the court for placement with a relative must be made no later than twenty days after a termination motion is filed. C.R.S. § 19-3-605(1)  Disposition o After the hearing, the court may terminate the parent-child legal relationship. It may terminate the rights of one or both parents. C.R.S. § 19-3-508(1) and (3) o Checklist of Findings . Do parties consent to magistrate’s jurisdiction? . Does the court have jurisdiction over the subject matter and the parties? . Did the court take judicial notice of prior findings and orders? . Did the respondents fail to appear after proper notice and are they in default? . Have respondents appeared and been advised of their rights? . Was a written motion for termination of parent-child legal relationship filed with the court at least thirty days before the hearing? . Was an attorney at law appointed guardian ad litem for the subject children? . Was an attorney at law appointed as counsel/GAL for the respondents? . Was judgment entered against respondents, and when? . Were the children adjudicated dependent or neglected? . Was an appropriate treatment plan adopted by the court, and when? . Finding: the treatment plan has been unsuccessful in rehabilitating the respondents, and they cannot provide reasonable parental care for the child or children; . The respondents have not complied with the treatment plan order; . The respondents are unfit because of the following reason; . The conduct or condition of respondents renders them unwilling or unable to give the child reasonable parental care; . The conduct or condition of respondents is unlikely to change within a reasonable period of time; . Reasonable efforts to rehabilitate the respondents have been made by Dep’t of Human Services; . Less drastic alternatives to termination of the parent-child legal relationship are not viable or in the best interests of the minor children; . It is in the best interests of the minor child to terminate the parent-child legal relationship; . Continuation of the legal relationship between respondents and the child is likely to result in grave risk of death or serious injury to the child; . The allegations of the motion for termination have been proven by;  Clear and convincing evidence; or  Proof beyond a reasonable doubt for an Indian child. The court, having considered testimony from an expert, qualified pursuant

74 to 25 U.S.C. § 1912(f), following BIA guidelines D.4, finds that continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child; . Other findings; . The motion for termination of the parent-child legal relationship is granted; . The parent-child relationship between the child (name) and the respondent (names) is hereby terminated; . Legal custody and guardianship of the person of the minor child is placed within Dep’t of Human Services with full power and authority to place said child for and consent to the child’s adoption. o Post-Termination Review . A review hearing is set for (time), the GAL and Dep’t of Human Services are hereby ordered to provide to the court a written report to the court filed one week prior to the hearing. Dep’t of Human Services must report on the child’s placement. The GAL must recommend the best disposition for the child based on an independent investigation; C.R.C.P. 58(a) . The clerk’s office is to provide a certified copy of this order to respondent at his or her last known address; C.R.C.P. 58(a) . Respondent has five days to file a motion for judicial review (magistrate) or forty-five days to file an appeal to the Colorado Court of Appeals (judge). C.R.C.P. 58(a)  Post-Termination Preferences o The court has the following dispositional alternatives: . Dep’t of Human Services for adoption: vesting Dep’t of Human Services with legal custody and guardianship to place the child for adoption; . Parental custody: if only one parent’s rights are terminated, the child may be placed with the other parent with or without protective supervision under necessary and appropriate conditions; . Relative custody: custody may be transferred to a relative or other suitable person with or without protective supervision under necessary and appropriate conditions. The request for relative placement must be made prior to the termination hearing. Relatives include the child’s grandparents, aunts, uncles, brothers and sisters; . Dep’t of Human Services custody: custody may be transferred to Dep’t of Human Services to place the child in a relative home, foster home, group care or other appropriate facility. o The court may be tempted to deny a termination, despite the criteria being proven, because the child is unlikely to be adopted. This deprives the child of any opportunity to be adopted. About ten percent of adoptions are later disrupted, but the rate of disruption for “permanent foster care” is fifty percent.

75 Post-Termination Review Hearing: After termination of the parent-child legal relationship, the court should hold a hearing within ninety days to review efforts to place the child for adoption

 Hearing o The court must hold a review hearing within ninety days of a termination order. The goal of this hearing is to make sure Dep’t of Human Services takes prompt action to finalize an adoption for the child. C.R.S. § 19-3-606(1) o Both Dep’t of Human Services and the GAL must submit a report. Dep’t of Human Services must report on the child’s placement. The GAL must recommend the best disposition for the child based on an independent investigation. These reports are confidential. C.R.S. § 19-3-606(1), C.R.S. § 19-1-309 o Dep’t of Human Services must release to the GAL before the post-termination review the name of the proposed adoptive parents. In M.C.P., Dep’t of Human Services argued that confidentiality regulations and public policy favoring anonymity in adoption prevented it from releasing information on the adoptive parent to the GAL. The appellate court disagreed. It held that the GAL’s input on the child’s ultimate placement is critical, and that disclosure of the prospective adoptive parents is necessary for the GAL’s independent assessments. People in the Interest of M.C.P., 768 P.2d 1253 (Colo. App. 1988)  Adoptive Placement o The following questions on adoptive placement may be asked for any child: . What efforts have been made to place this child for adoption? . Do you have any prospective adoptive parents? . Is the child placed in an adoptive home? . Is the adoptive placement appropriate? . Has Dep’t of Human Services prepared an adoption assistance agreement? . Are post-adoption services being offered? . Has an adoption petition been filed? . Is an adoption hearing scheduled? . When will a final adoption decree be entered? . Are there any barriers to finalization? o For an Indian child, adoptive placement preferences apply. Preference for adoptive homes must be given, in the absence of good cause to the contrary, to: . Extended family members; . Tribal members; . Other Indian families. 25 U.S.C. § 1915(a)

o If Dep’t of Human Services has completed a home study on a potential adoptive family and has not placed a child available for adoption with them within six months, the family’s name is placed on the statewide adoptive family resource registry. The family must give their written consent to be on the registry. This

76 allows other counties with waiting children to contact these preadoptive parents. C.R.S. § 19-5-207.5 o If no adoption takes place within a reasonable time, the court should determine if adoption is feasible and appropriate. If not, the court may change the child’s permanency goal to another permanent placement, such as relative guardianship or long-term foster care. C.R.S. § 19-3-606(2)  Further Reviews o The court should hold reviews every six months until the adoption is finalized. The court may order administrative reviews if the parties do no object. The court also may hold more frequent reviews. C.R.S. § 19-3-702(8), C.R.S. § 19-1-115(4)(c)

ELECTRONIC RESOURCE 1b: CHAPTER 10 – FEDERAL CHILD WELFARE LAW LEGISLATION

CHAPTER 10: FEDERAL CHILD WELFARE LEGISLATION

by Frank E. Vandervort1

§10.1 Introduction

This chapter provides a brief overview of federal statutes that impact the practice of child welfare law. Since the enactment of the Child Abuse Prevention and Treatment Act in 1974 (CAPTA), the federal government has played an ever increasing role in handling child maltreatment cases. A table of child welfare legislation is included for quick reference.2

1 Portions of this chapter are adapted from the earlier version, Miriam Rollin, Frank Vandervort & Ann Haralambie, Federal Child Welfare and Policy: Understanding the Federal Law and Funding Process, in CHILD WELFARE LAW AND PRACTICE: REPRESENTING CHILDREN, PARENTS, AND STATE AGENCIES IN ABUSE, NEGLECT, AND DEPENDENCY CASES (Marvin Ventrell & Donald N. Duquette, 2005). I wish to thank Jonathan Fazzola for his helpful research assistance in preparing this chapter. 77 In the early history of America, the welfare of children who were abused, neglected or abandoned was addressed only by local authorities. Later, individual states developed responses to cases of child maltreatment. (See Chapter 9, The History of Child Welfare Law.) Over the past four decades the federal government has played an ever increasing role in child welfare. With few exceptions, federal child welfare legislation is not substantive.3 That is, the federal government cannot tell any state how it must handle individual cases of child maltreatment. Rather, most federal legislation establishes funding schemes by which an individual state may avail itself of federal funds if it complies with various requirements established by the federal government. While a state may decline to take the federal dollars offered through the various programs, and thereby release itself from any duty to comply with the federal requirements, as a practical matter the funding provided by the federal government is essential to states’ efforts to deliver child welfare services. Today every state accepts federal funding; they are at pains to comply with the requirements of the various federal statutes.

§10.2 The Early Years

Since the earliest days after European contact with America, the law has provided for the protection of children from maltreatment by their parents or legal custodians.4 During the pre- Civil War period, the protection of children was primarily the responsibility of local authorities, who were assisted by various private organizations.5 In the 1860s, state governments began playing a role in child protection by providing funding assistance to local communities and oversight regarding the use of those monies.6

The federal government’s role in child welfare began with the 1909 White House Conference on the Care of Dependent Children.7 Among the recommendations that emerged from this meeting of the national child welfare leadership was the creation of an office within the federal government to address the needs of abused, neglected and dependent children.8 In April

2 The reader should note that the text of the chapter will not discuss every statute in the table of statutes. Those not discussed in this chapter are discussed in other chapters in this book. 3 A notable exception is the Indian Child Welfare Ac (ICWA), 25 U.S.C. § 1901 et seq. For a discussion of the ICWA, see Chapter 12.

4 JOHN E.B. MYERS, CHILD PROTECTION IN AMERICA: PAST, PRESENT AND FUTURE 11-13 (2006) (hereinafter CHILD PROTECTION IN AMERICA); Also see Chapter 9, The History of Child Welfare Law.

5 Id. at 11, 58.

6 Id at 58.

7 Id at 58-59.

8 Id. at 59, 61. 78 of 1912 the Children’s Bureau was established and charged with the duty to “‘Investigate and report . . . upon all matters pertaining to the welfare of children. . . .’” 9

The role of the federal government in child well-being began with the passage of the Social Security Act of 1935 (SSA). Among other efforts on behalf of children and families, the SSA provided for the Children’s Bureau to work with state authorities to improve the provision of child welfare services to abused and neglected children.10 For four decades following the enactment of the SSA, the federal government’s role in child welfare was modest, limited to the provision of AFDC benefits for eligible children placed in the foster care system. But in the 1970s, the federal government, acting pursuant to the spending clause of the United States Constitution,11 dramatically increased its role in all phases of preventing and responding to child maltreatment. Since then, the federal role in the child welfare system has steadily increased to the point that today it plays a dominant role.12

§10.3 Current Federal Law

Current federal law provides a detailed scheme for funding all areas of child welfare practice. Although federal law provides funding for all phases along the child welfare continuum —from primary prevention through early intervention to termination of parental rights and adoption—it still provides inadequate amounts of money to deal with the problem of child maltreatment comprehensively.

§10.3.1 Child Abuse Prevention and Treatment Act

Congress expanded its involvement in child welfare in 1974 with the enactment of the Child Abuse Prevention and Treatment Act (CAPTA).13 CAPTA must be periodically reauthorized. Broadly speaking, CAPTA accomplishes two goals. First, it establishes federal programs for research on the causes of child abuse and neglect and for implementation of programs of best practice in the states. CAPTA permits the Secretary of the Department of Health and Human Services (DHHS) to appoint an advisory board on child abuse and neglect for the purpose of making recommendations to the Secretary and to congressional committees “concerning specific issues relating to child abuse and neglect.”14 Additionally, the statute

9 Id. at 61 (citation omitted).

10 Id. at 63.

11 U.S. Cost. Art. I, §8, Cl. 1.

12 CHILD PROTECTION IN AMERICA, supra note 4 at 64.

13 P.L. 93-247; 42 U.S.C. § 5101 et seq. For a comprehensive treatment of the most recent version of CAPTA, see: www.acf.hhs.gov/programs/cb/laws_policies/cblaws/capta03/capta_manual.pdf.

14 42 U.S.C. § 5102. 79 requires that the DHHS establish a Clearinghouse for child welfare information.15 The purpose of the Clearinghouse is to “maintain, coordinate and disseminate information” regarding programs aimed at the “prevention, assessment, identification, and treatment of child abuse and neglect and hold potential for broad scale implementation and replication.”16 The Secretary of DHHS is also charged with “carry[ing] out a continuing interdisciplinary program of research . . . that is designed to provide information needed to better protect children from abuse or neglect and to improve the well-being of abused or neglected children.”17 Additionally, the DHHS must conduct research regarding the national incidence of child abuse and neglect.18

Secondly, the statute provides states a mechanism for accessing federal dollars to support their efforts to prevent and respond to cases of child maltreatment, including, but not limited to, neglect, physical abuse, and sexual abuse. The Secretary of DHHS must make grants to states “based on the population of children under 18 in each state that applies for a grant.”19 If a state wishes to draw down the financial support provided by CAPTA, it must present to the DHHS for approval a state plan which complies with the commands of the statute.20 The application must address each of the areas of concern established in the statute. Basically, the state’s application must establish a comprehensive program for: (1) mandated reporting of suspected child abuse or neglect; (2) responding to those reports with assessment methods that will distinguish valid from invalid reports; (3) taking action that is appropriate to the level of risk of harm to the child involved.21

Among CAPTA’s numerous provisions are several that may be of particular interest to child welfare lawyers. First, the statute provides that if judicial proceedings are necessary to protect a child, a guardian ad litem (GAL) must be appointed to represent the child’s interests. That GAL “may be a lawyer.”22 The state must ensure that GALs appointed to represent children in child protective proceedings have received “training appropriate to the role. A GAL appointed to represent a child in a protective proceeding is to “obtain first-hand, a clear understanding of

15 42 U.S.C. § 5104.

16 Id.

17 42 U.S.C. § 5105(a)(1).

18 42 U.S.C. § 5105(a)(2).

19 42 U.S.C. § 5106a(a).

20 The commands of state plans are comprehensive and detailed. Space limitations do not permit a truly detailed discussion of the requirements of a state plan. See 42 U.S.C. § 5106(b)(detailing the requirements of a state plan).

21 42 U.S.C. § 5106a.

22 42 U.S.C. 5106a(b)(2)(A)(xiii). 80 the situation and the needs of the child” as well as “make recommendations to the court concerning the best interests of the child.”23

A portion of the federal dollars provided to the states through CAPTA may be used to train professionals, including GALs, regarding the prevention of and response to child maltreatment.24 If implemented, these training programs may include information regarding the legal rights of children and families.25

Additionally, CAPTA provides federal funding for states to improve their child protection systems, by “improving legal preparation and representation” relating to “(i) procedures for appealing and responding to appeals of substantiated reports of abuse and neglect; and (ii) provisions for the appointment of an individual . . . to represent a child in judicial proceedings.”26 That is, a state may use a portion of its federal CAPTA dollars to ensure there is a process in place for a parent to appeal a CPS finding that he or she maltreated his or her child and for the appointment of a representative for the child when a child protection action is filed with the court. Finally, when CAPTA was reauthorized and amended in 2003 as part of the Keeping Children and Families Safe Act, among the additions to the statute was one that permits each state to decide whether court proceedings regarding child abuse and neglect will be open to the public.27

CAPTA mandates that a state plan submitted pursuant to its requirements be coordinated with the state’s plan submitted under Title IV-B of the Social Security Act, which seeks to preserve families in which child abuse or neglect have been found to exist and to prevent children from entering the foster care system.28 Thus, when taken together with Titles IV-B and IV-E attempt to provide a comprehensive funding scheme to respond to reports of child maltreatment.

§10.3.2 Titles IV-B and IV-E

By the late 1970s, in part as a result of heightened awareness of child maltreatment and mandated reporting, the number of children in the foster care system nationally had grown to more than a quarter of a million. Throughout the decade of the 1970s child advocates grew increasingly concerned about the number of children in foster care and the length of time those

23 42 U.S.C. §5106a(b)(2)(xiii).

24 42 U.S.C. 5106(a)(1).

25 42 U.S.C. § 5106(a)(1)(F).

26 42 U.S.C. § 5106a(a)(2)(B).

27 42 U.S.C. § 5106a(b)(2)(D).

28 See 42 U.S.C. § 621 et seq. 81 children spent in the foster care system. At that time, children who entered foster care often spent years in the legal “limbo” of the system, which was intended to provide temporary care for the child, not returning to their parents yet never being freed for adoption. The facts in two United States Supreme Court cases from that era provide vivid and typical examples of this problem. In Smith v Organization of Foster Families for Equity and Reform (OFFER)29 foster parents brought suit alleging that their constitutional rights were violated when state child welfare workers moved foster children who had been in their care for extended periods of time, sometimes for years, without adequate due process. In its opinion, the Court noted that, on average, children in New York’s foster care system stayed in temporary foster care for more than four years with some of the children involved having lived with their foster parents for 10 years.30 Similarly, the oft cited Santosky v Kramer,31 in which the court established the constitutionally mandated standard for termination of parental rights as clear and convincing, involved three children. One child entered foster care in November 1973, the other two in September 1974. In September 1976, the state sought to terminate parental rights. The court, however, denied the states request. The children remained in foster care until October 1978 before the state again sought to free the children for adoption.32

In addition to the problem of foster care “limbo,” there was concern about “foster care drift,” the phenomenon of children being moved from one placement to another, often repeatedly. For instance, in Smith v OFFER the court pointed out that in 1973-1974 approximately 80% of child who were removed after spending at least one year in a foster home were removed in order to be placed in another foster home.33

The Adoption Assistance and Child Welfare Act of 1980

Concern about the numbers of children entering the foster care system, as well as the length of time they remained subject to placement instability, led Congress to pass and President Jimmy Carter to sign into law the Adoption Assistance and Child Welfare Act of 1980 (AACWA), which established Titles IV-B and IV-E of the Social Security Act.34 The act’s 29 431 U.S. 816 (1977).

30 Id. at 836

31 455 U.S. 745 (1982).

32 Of course, the Supreme Court did not issue its opinion in the case until March 1982, so the final resolution of the children’s legal status took more than eight-and-one-half-years.

33 Smith v OFFER, supra note 31 at 829, n, 23. While there has been some improvement in placement instability, it remains a substantial problem. For instance, a 2004 conducted by the Children and Family Research Center at the University of Illinois Urbana-Champaign found that 40% of Illinois’ foster children experience placement instability which was defined as having at least four placements while in foster care. See Multiple Placements in Foster Care: Literature Review of Correlates and Predictors, available at: www.cfrc.illinois.edu/LRpdfs/PlacementStability.LR.pdf. 34 42 U.S.C. § 621 et seq; 42 U.S.C. § 670 et seq. 82 overarching goal was to reduce the number of children entering foster care and to reduce the length of time they remained in the system after they entered. Broadly speaking, the legislation addressed the problem in three ways. First, it sought to reduce the number of children entering foster care by requiring that “reasonable efforts” be made to keep children in their families. Next, the statute attempted to reduce children’s lengths of stay by mandating that “reasonable efforts” be made to reunify children with their parents.35 The statute also introduced for the first time the idea of permanency planning. Specifically, the law mandated that either the state child welfare agency or the court hold periodic reviews of cases to monitor progress (at least every six months) and that there be a permanency planning hearing held after the child was in out-of-home care for 18 months. Finally, the legislation provided for the first time federally funded adoption subsidies in an effort to move special needs children—older children and those with emotional or behavioral problems--from the temporary status of foster care into permanent homes.

Like CAPTA, the legislation sought to accomplish its goals by establishing a program of contingent funding for the states. If states developed child welfare and foster care programming consistent with the federal government’s requirements, the state would be eligible to receive federal funding to support those efforts. Typically, the funds provided by the federal government require a state match, which varies from 25 percent to 80 percent depending on the nature of the expenditure.36

Federal funds available pursuant to Title IV-B are intended for use in preventing and responding to cases of child maltreatment. Its purposes are broadly outlined in the statute:

The purpose of [Title IV-B] is to promote State flexibility in the development and expansion of a coordinated child and family services program that utilizes community-based agencies and ensures all children are raised in safe, loving families, by-- (1) protecting and promoting the welfare of all children; (2) preventing the neglect, abuse, or exploitation of children; (3) supporting at-risk families through services which allow children, where appropriate, to remain safely with their families or return to their families in a timely manner; (4) promoting the safety, permanence, and well-being of children in foster care and adoptive families; and (5) providing training, professional development and support to ensure a well-qualified child welfare workforce.37

35 The AACWA did not define “reasonable efforts,” nor have subsequent amendments to the statute. For helpful guidance in understanding the reasonable efforts concept and its application in practice, see, ABA CENTER ON CHILDREN AND THE LAW, MAKING SENSE OF THE ASFA REGULATIONS (2001); CECILIA FIERMONTE U JENNIFER RENNE, ABA CENTER ON CHILDREN AND THE LAW, MAKING IT PERMANENT: REASONABLE EFFORTS TO FINALIZE PERMANENCY PLANS FOR FOSTER CHILDREN (2002).

36 42 U.S.C. § 674 (detailing percentages of reimbursements on expenditures). 37 42 U.S.C. § 621. 83 In order to be eligible to draw down the federal money, the state, together with the Secretary of DHHS must develop a state plan for the provision of child welfare services which meets certain federal requirements.38 The statute requires that the state’s Title IV-B plan be coordinated with the state’s other child welfare plans pursuant to various other federal child welfare legislation.39 The state’s child welfare agency must also demonstrate “substantial, ongoing, and meaningful collaboration with state courts” in implementing their plans.40

Title IV-E funds provide federal assistance to states to help offset the costs of placing abused and neglected children into the foster care system when they cannot be safely maintained in their homes. It has long required states to develop a plan for the delivery of child welfare services, which must be approved by the federal government. Among its many requirements are that each child that enters foster care must have a plan which articulates the permanency goal for the child, establishes a schedule of services that the parents and child are to receive in order facilitate reunification or, if reunification is not the permanency goal, a plan for achieving the identified permanent goal.

The AACWA began to have its intended impact. By 1982 the number of children in foster care began to decline.41 But two phenomena converged shortly thereafter to dramatically increase the number of children entering the nation’s foster care system. First, in response to the election of Ronald Reagan as President a more conservative government began to cut economic benefits to poor and working families. Between 1982 and 1984 nearly a half million families were removed from public assistance and another half million lost their Social Security disability payments.42 Secondly, new social forces emerged—crack cocaine and HIV/AIDS—that dramatically increased the demand for child welfare services and professionals began to see more families with multiple problems.43 Whereas in 1982 there were about a quarter of a million children in the nation’s foster care system, by 1993 that number had grown to 464,000.44

One response to the increased demand for child welfare services through the decade of the 1980s which was consistent with the federal mandate of the AACWA to preserve families was the increased use of family preservation programs. In hindsight, these politically popular

38 42 U.S.C. § 622.

39 42 U.S.C. § 622(b)(2).

40 42 U.S.C. § 622 (b)(13).

41 RICHARD GELLES, THE BOOK OF DAVID: HOW PRESERVING FAMILIES CAN COST CHILDREN THEIR LIVES 130-131 (1996).

42 Id.

43 Id. at 131-132.

44 Id. at 131. 84 programs may have been utilized beyond what the evidence of their efficacy would support.45 As Professor Elizabeth Bartholet has observed, advocates for these programs often measured their success by whether they maintained children in their homes rather than whether children were safe and well cared for. In a number of high profile cases children were seriously injured or killed by parents in families in which child protective services had been involved.46 This led policy makers to act once again.

Adoption and Safe Families Act

Concerned that its intent with regard to the handling of child welfare cases—and especially that its intentions regarding the application of the “reasonable efforts” and family preservation provisions of the AACWA—had been misunderstood and misapplied.47 Congress, in 1997, passed the Adoption and Safe Families Act (ASFA), which became law in November of that year.48 ASFA amended Titles IV-B and IV-E to clarify the intent of Congress with regard to the provision of child welfare services.

ASFA maintained the basic formula established in the AACWA. First, it reaffirmed the federal government’s commitment to family preservation as a means of reducing the number of children removed from their homes and placed into the foster care system. It maintained the requirement that in most cases state child welfare agencies should make “reasonable efforts” to maintain familial integrity and it substantially increased the funding available to states for family preservation services. In doing so, however, the Congress specifically sought to make clear that “in determining reasonable efforts to be made with respect to a child . . . the child’s health and safety shall be the paramount concern.”49

Next, when a child’s safety in the familial home cannot be guaranteed, ASFA provides for a differential response depending upon the nature of the harm done to the child. In cases of serious abuse in which the child or a sibling of the child has suffered grave harm, that has resulted in a criminal conviction of the parent for killing or inflicting serious harm on a child or where a parent has experienced previous involuntary termination of parental rights, ASFA eliminates the reasonable efforts requirement altogether and requires that the state child welfare agency immediately initiate or join an effort to terminate the parent’s rights or otherwise place

45 Id at 132-133.; see also, ELIZABETH BARTHOLET, NOBODY’S CHILDREN: ABUSE, NEGLECT, FOSTER DRIFT, AND THE ADOPTION ALTERNATIVE.

46 See, e.g. , THE BOOK OF DAVID, supra note __.

47 Id. (arguing that family preservation had become the “central mission” of the child welfare system and that it placed children at unacceptable risk of harm).

48 Pub. L. No. 105-89.

49 42 U.S.C. § 671(a)(15). 85 the child permanently.50 Thus, for the first time, the federal law demanded that states seek immediate termination of parental rights or that another alternative permanent plan be sought in order to protect the child from abuse, neglect or abandonment.

ASFA also invited, but did not require, each state to establish for itself a set of “aggravated circumstances” cases, which the state determines by either statute or policy will render a parent ineligible for either family preservation or family reunification services.51That is, ASFA permitted each state to define for itself a category of cases in which it will immediately seek to terminate the parents’ rights or implement an alternative permanency plan. While the federal legislation allows each state to determine the specific types of cases that will fall within the “aggravated circumstances” designation, it suggests that appropriate cases may include situations where the parent has subjected the child to “abandonment, torture, chronic abuse and sexual abuse.”52 Finally, ASFA permits the state child welfare agency to seek,53 and the court to grant,54 a request for immediate or early termination of parental rights in any case where the facts and circumstances of that particular child’s situation warrant such action. Illinois has, for instance, adopted a statute which codifies this authority. Its law permits an appropriate party to seek termination of parental rights “in those extreme cases in which the parent’s incapacity to care for the child, combined with an extremely poor prognosis for treatment or rehabilitation, justifies expedited termination of parental rights.” 55 Statutes such as this may place an additional burden on the child’s attorney. For instance, some states allow the child’s advocate to petition the court to terminate parental rights or to otherwise move to permanency at any time after the case is filed. In a state which permits such action, it is a good practice for the child’s advocate to

50 See 42 U.S.C. § 671(a)(15(D)(ii); see 45 C.F.R. § 1356.21(b)(3)(requiring that the parent be convicted of the relevant crime before ASFA’s mandatory termination requirement is triggered).

51 42 U.S.C. 671(a)(15)(D)(i).

52 Id. Note, again, that this list is merely suggestive and that each state is free to determine for itself whether or not to include these or other types of cases in its definition of “aggravated circumstances” cases. For example, Michigan has adopted a definition of “aggravated circumstances” cases that includes child sexual abuse involving penetration or an attempt to penetrate, but has excluded those sexual abuse cases which involve only fondling. See MICH. COMP. LAWS ANN. § 722.638 (requiring state child protection agency to petition the court and seek termination of parental rights at the initial dispositional hearing); MICH. COMP. LAWS ANN. § 712A.19b(3)(k)(establishing aggravated circumstances as a basis for termination of parental rights). For more information regarding the bases for involuntary termination of parental rights, including information as to how individual states have defined “aggravated circumstances,” see, the following page on the Children’s Bureau’s Child Welfare Information Gateway: http://www.childwelfare.gov/systemwide/laws_policies/statutes/reunify.cfm#4.

53 See Rule of Construction following 42 U.S.C. § 675 (Pub. L. No. 105-89, § 103(d)); see generally, U.S. v Weldon, 377 U.S. 95, fn 4 (1964).

54 42 U.C.C. 678.

55 See, e.g., 705 ILL. COMP. STAT. ANN. § 405/1-2(1)(c). 86 consider at each stage of every case whether the facts merit an effort to pursue early permanency or whether continued efforts to reunify the family will best serve the child.

Unless the court has determined that no “reasonable efforts” are required and permits a party to immediately implement an alternative permanent plan, the state must make “reasonable efforts” to reunify the child with his or her parent. While the federal law requires “reasonable efforts” be made in most cases, it does not define what constitutes “reasonable efforts.” Defining “reasonable efforts” in a way that is truly helpful and provides practitioners with guidance has proven elusive. Missouri, for example, uses this definition:

“reasonable efforts” means the exercise of reasonable diligence and care . . . to utilize all available services related to meeting the need of the juvenile and the family. In determining reasonable efforts to be made and making such reasonable efforts, the child’s present and ongoing health and safety shall be the paramount consideration.56

In order to operationalize the definition, some states have combined a definition of “reasonable efforts” with criteria to assist courts in determining whether the state agency has undertaken the necessary steps to comply with the requirement. The Iowa statute provides an example of this approach:

"reasonable efforts" means the efforts made to preserve and unify a family prior to the out-of-home placement of a child in foster care or to eliminate the need for removal of the child or make it possible for the child to safely return to the family's home. Reasonable efforts shall include but are not limited to giving consideration, if appropriate, to interstate placement of a child in the permanency planning decisions involving the child and giving consideration to in-state and out-of-state placement options at a permanency hearing and when using concurrent planning. If returning the child to the family's home is not appropriate or not possible, reasonable efforts shall include the efforts made in a timely manner to finalize a permanency plan for the child. A child's health and safety shall be the paramount concern in making reasonable efforts. Reasonable efforts may include but are not limited to family-centered services, if the child's safety in the home can be maintained during the time the services are provided. In determining whether reasonable efforts have been made, the court shall consider both of the following:

(1) The type, duration, and intensity of services or support offered or provided to the child and the child's family. If family-centered services were not provided, the court record shall enumerate the reasons the services were not provided, including but not limited to whether the services were not available, not accepted by the child's family, judged to be unable to protect the child and the child's family during the time the services would have been provided, judged

56 § 211.183(2) R.S.MO. 87 to be unlikely to be successful in resolving the problems which would lead to removal of the child, or other services were found to be more appropriate.

(2) The relative risk to the child of remaining in the child's home versus removal of the child.57

Despite the definitional difficulties, when “reasonable efforts” must be made, the state’s child welfare agency must establish a written case plan. That plan must include a description of the child’s placement and a schedule of services to be provided to the child, the child’s parents, and the foster parents to facilitate reunification.58 Additionally, the plan must contain information about the child’s health care, schooling, and related information.59 If the child is 16-years-of-age or older, the case plan typically must contain a schedule of services aimed at assisting the youth in developing independence.60 If the permanency planning goal is adoption or some other alternative (e.g., permanent guardianship), then the case plan must include a description of the “reasonable efforts” made to achieve the identified goal.61

In addition to the provisions that more clearly define the need to make “reasonable efforts,” ASFA made numerous procedural changes aimed at expediting children’s moves through the foster care system. 62 The state’s plan for providing foster care services must include a “case review system” that provides for periodic review of the case by a court or an administrative agency at least every six months, as well as a permanency planning hearing to be held at least once every 12 months for as long as the child remains in foster care. Subject to several specific exceptions, when a child has been in foster care for 15 of the most recent 22 months, ASFA requires that the state child welfare agency pursue termination of parental rights.63 At least one state’s supreme court has held, however, that more than the mere passage of time is necessary when considering termination based upon the child’s being in foster care for a defined period of time.64

57 Iowa Code § 232.102(10)(a).

58 42 U.S.C. § 675(1)(defining “case plan” and detailing the contents of that plan).

59 Id.

60 See the discussion of the Foster Care Independence Act/Chaffee Act below. It should be noted that some states have made these independent living skills programs and services available to youth younger than 16. You should consult your state laws and policy to determine your state’s approach to this question.

61 42 U.S.C. § 675(1)(E).

62 42 U.S.C. § 675(5).

63 42 U.S.C. § 675(5)(E).

64 In re H.G., 757 N.E.2d 864 (Ill. 2001)(termination based merely on child’s placement in foster care for 15 of 22 months violated parent’s substantive due process right to custody of the child). 88 Several other provisions of ASFA focused on expediting children’s moves through foster care. ASFA continued AACWA’s effort to move children out of the foster care system and into permanent placement by permitting the use of concurrent planning.65 Concurrent planning allows the state to simultaneously pursue efforts aimed at reunification as well as efforts to place the child in an alternative permanent setting if family reunification cannot be achieved. Such a concurrent approach, as opposed to the seriatim approach often employed by child welfare agencies, may shorten substantially the child’s stay in temporary foster care.

Next, in addition to continuing the subsidies available to individual families to assist with expenses associated with adoption, ASFA provided each state a financial incentive to focus on efforts to move children who could not be returned to their family of origin into adoptive homes. It did so by establishing a baseline number of adoptions and then paying the state a bonus for each adoption from foster care finalized in excess of that baseline.66

Finally, the ASFA expanded the permanency options available for resolving cases.67 For instance, permanent guardianship was specifically recognized as a form of permanency.68 As a last resort for those children who could not be returned to their family of origin but for whom more complete legal permanency could not be achieved, ASFA permitted the state to utilize “another planned permanent living arrangement” (APPLA).69 APPLA “is a case plan designation for children in out-of-home care for whom there is no goal of placement with a legal, permanent family.”70 Before using an APPLA, the caseworker must document and present to the court compelling reasons why a more appropriate, legally permanent placement option (e.g., return home, adoption, permanent placement with a willing relative) is not available for the child or youth. APPLA may include independent living for an older foster youth who does not wish to be adopted, long-term foster care placement for a youth who has a strong bond with his or her natural parent but whose parent is unable to care for the youth or, in the case of an Indian child, a

65 42 U.S.C. § 671(a)(15)(F).

66 42 U.S.C. § 673b.

67 See generally DONALD N. DUQUETTE & MARK HARDIN, GUIDELINES FOR PUBLIC POLICY AND STATE LEGISLATION GOVERNING PERMANENCE FOR CHILDREN (Children’s Bureau;1999).

68 42 U.S.C. § 675(7)(defining “legal guardianship” as a judicially created relationship that is intended to be permanent). It should be noted here that additional amendments to Title IV-E enacted as part of the Fostering Connections Act have further ensconced legal guardianship as a permanency plan and provides federal funding to assist in the establishment of permanent, subsidized legal guardianships. These changes will be discussed in more detail later in this chapter.

69 See 42 USC § 675(5)(C).

70 See www.childwelfare.gov/outofhome/types/appla_ltfc.cfm. 89 situation where the child’s tribe has established a different plan for the child’s permanent placement.71

§10.4 Multiethnic Placement Act and the Interethnic Adoption Provisions

§10.4.1 History

Through much of American history, minority children—and particularly African American children—were excluded from receiving publicly funded child welfare services or received fewer services in less family-like settings than Caucasian children.72 Some non- governmental child welfare programs provided services to children without regard to race, yet the needs of children of color often went unmet or were improperly addressed.73 In the early decades of the twentieth century, African American women began establishing privately funded programs to provide services for black children in need of such services.74 Over time, these organizations contracted with public authorities to provide services to children of color. Today it would be illegal to deny a child services to a child or family based upon race.

In recent years, the concern of child welfare professionals has not been the lack of services to children of color,75 but rather the overrepresentation of minority children, and particularly African American children, in the nation’s public child welfare system.76 As African American children began to be served by the public system, a number of controversies emerged. Among these, few have been more contentious than the placement of children across racial lines, principally, although not exclusively, the placement of African American children with Caucasian families.77 On the one hand, the failure to place children across racial lines means that there is a smaller foster family pool to draw from, and this may deprive children of a family and

71 See Jennifer Renne & Gerald P. Mallon, Facilitating Permanency for Youth: The Overuse of Long-Term Foster Care and the Appropriate Use of Another Planned Permanent Living Arrangement as Options for Youth in Foster Care, in CHILD WELFARE FOR THE 21ST CENTURY: A HANDBOOK OF PRACTICES, POLICIES AND PROGRAMS (Gerald P. Mallon & Peg McCartt Hess, eds., 2005).

72 Wilma Peebles-Wilkins, Janie Porter Barrett and the Virginia Industrial School for Girls: Community Response to the Needs of African American Children, 74 Child Welfare 143 (January/February 1995)(hereinafter Community Response); JOHN E.B. MYERS, CHILD PROTECTION IN AMERICA: PAST, PRESENT , AND FUTURE 184-185 (2006). See generally RANDALL KENNEDY, INTERRACIAL INTIMACIES: SEX, MARRIAGE, IDENTITY, AND ADPTION (2003) (hereinafter INTERRACIAL INTIMACIES).

73 Id.

74 Community Response, supra note __ at 145 – 146.

75 A number of commentators have argued, of course, that children and families of color are provided the wrong or inadequate services. See CHILD PROTECTION IN AMERICA, supra note __, at 185 (citing DOROTHY ROBERTS, SHATTERED BONDS: THE COLOR OF CHILD WELFARE (2002)).

76 CHILD PROTECTION IN AMERICA, supra note 4 at 198. 90 condemn them to shuffle from temporary foster home to temporary foster home or institutional care.78 On the other hand, there is concern that placing children across racial lines may dislocate children from their racial and ethnic identity and will not adequately prepare minority children for dealing with a racist society.79

Placement of children across racial lines for foster care and adoption has had a contentious history in this country.80 This may in part stem from a long-standing misperception that African Americans families were unwilling to adopt.81 But it also has its roots in the historical failure of public authorities to license African American homes to provide foster care to children, sometimes because of overt racism and sometimes because of the application of race neutral licensing criteria which historically have had a disproportionate negative impact on African Americans. In 1972, the National Association of Black Social Workers adopted a policy position opposing the adoption of African-American children by non-African-American parents.82 While over the years the organization’s position has developed nuance, it continues to oppose the trans-racial adoption of African-American children in most circumstances.83 For decades, child welfare agencies maintained race matching policies for foster children and those in need of adoption services.84 During that time, placement of a child across racial lines was permitted only as a last resort.85 Too frequently, however, children were removed from stable trans-racial foster home placements only to prevent the possibility of a trans-racial adoption.86

77 Although not discussed in this chapter, the removal Indian children from their families and placement with white families for adoption was a major impetus for the enactment of the Indian Child Welfare Act, 25 U.S.C. § 1901, et seq. See Chapter 12.

78 See generally INTERRACIAL INTIMACIES, supra note 74 at 402-479 (2003).

79 Id. at 395-396.

80 See generally Id. (discussing the conflict surrounding interracial adoption); Elizabeth Bartholet, NOBODY’S CHILDREN: ABUSE AND NEGLECT, FOSTER DRIFT, AND THE ADOPTION ALTERNATIVE 123-140 (1999)(discussing the history of the controversy surrounding race matching in adoption).

81 ANDREW BILLINGSLEY, CLIMBING JACOB’S LADDER: THE ENDURING LEGACY OF AFRICAN-AMERICAN FAMILIES 29 (1992).

82 See www.nabsw.org/mserver/PreservingFamilies.aspx (describing the organization’s position on adoption and preservation of African-American Families).

83 Id.

84 JOAN HEIFTZ HOLLNGER & THE ABA CENTER ON CHILDREN AND THE LAW, A GUIDE TO THE MULTIETHNIC PLACEMENT ACT OF 1994 AS AMENDED BY THE INTERETHNIC ADOPTION PROVISIONS OF 1996 4-6 (1998)(hereinafter A GUIDE TO THE MULTIETHNIC PLACEMENT ACT).

85 Id. at 4.

86 Id. 91 Those polices often resulted in minority children remaining in temporary foster care for unnecessarily long periods of time.87

In an effort to address these issues, Congress passed the Multi-Ethnic Placement Act (MEPA) in 1994, which amended portions of Title IV-B and IV-E of the Social Security Act. 88 The Act sought to eliminate—or at least dramatically reduce—race, color, and national origin as considerations in making foster care and adoptive placement decisions. The original statute, however, contained language which was easily interpreted to permit just what it intended to prohibit, the consideration of race, color or national origin of the child or the parent when making foster care or adoptive placement decisions.89 For example, the statute prohibited the “routine” consideration of race, color or national when making placement decisions, which implied that these factors were legitimate considerations rather than wholly prohibited.

Two years after the enactment of MEPA, Congress enacted the Interethnic Adoption Provisions of the Small Business Job Protection Act (IEP). These amendments sought to clarify Congress’s intent that, consistent with other civil rights legislation, considerations of race, color or national origin were not to be permitted when making placement decisions in the public child welfare system.90 The IEP also engrafted significant financial penalties in the form of loss of Title IV-E funding onto the law for violation of its terms.91 Moreover, the amendments explicitly provided a right to sue to any child or adult aggrieved by its violation.92

Broadly speaking, the MEPA-IEP seeks to achieve three goals. First, it seeks to eliminate the consideration of a person’s race, color, or national origin with regard to licensing foster parents. The current law provides that:

Neither the State nor any other entity in the State that received funds from the Federal Government and is involved in adoption or foster care placements may-

(A)Deny to any person the opportunity to become an adoptive or a foster parent, on the basis of race, color, or national origin of the person, or of the child involved.93

87 Id. at 5.

88 See 42 U.S.C. § 622(b)(7); 42 U.S.C. § 671(a)(18); 42 U.S.C. § 674(d)(2).

89 NOBODY’S CHILDREN, supra note 47 at 130-131.

90 Id. at 131.

91 42 U.S.C. § 674(d)(1).

92 See 42 U.S.C. § 674(d)(3).

93 42 U.S.C. § 671(a)(18)(A). 92 Next, it prohibits state child welfare agencies, their workers or agents, and their courts from considering the race, color or national origin of either a child or a parent when making decisions regarding foster care or adoptive placement of a child. The law provides that state agencies or their agents shall not “delay or deny the placement of a child for adoption or into foster care, on the basis of race, color or national origin of the adoptive or foster parent, or the child, involved.”94

Finally, it requires state child welfare authorities to make diligent efforts to recruit foster and adoptive parents “that reflect the racial and ethic diversity of the children in the State for whom foster and adoptive homes are needed.”95 Specifically, the law as interpreted by the Department of Health and Human Services, mandates that, among other things, state authorities:

 Develop recruitment plans that reach all parts of the community;

 Utilize diverse methods and avenues for disseminating information about fostering and adopting;

 Ensure all prospective foster or adoptive parents have timely access to the home study process;

 Train workers to work with diverse cultures; and

 Develop methods to overcome language barriers.96

§10.4.2 Delay

Any delay in placement based on race, color, or national origin is prohibited by the statute. Thus, for instance, utilizing “holding periods” for the purpose of placing a child in racially congruent foster or adoptive home would violate the law.

§10.4.3 Denial

Under MEPA-IEP, race, color or national origin cannot be used to render a child ineligible for foster care or adoption nor to deny a person the opportunity to become a foster parent. Additionally, the agency must not take race, color or national origin into consideration when making decisions regarding efforts aimed at reunification, concurrent planning or the termination of parental rights.

94 42 U.S.C. § 671(a)(18)(B).

95 42 U.S.C. § 622(b)(7); see also A GUIDE TO THE MULTIETHNIC PLACEMENT ACT, supra note 86 , at 2; 42 U.S.C. § 622(b)(7).

96 A GUIDE TO THE MULTIETHNIC PLACEMENT ACT, supra note __, at 13. 93 Although race, color, and national origin may not be considerations used to deny foster care or adoptive placement, MEPA-IEP does not prohibit all consideration of these factors when assessing the needs of a particular child in an individual case.97 Guidance published by the DHHS in 1997 and 1998 provides that in certain, narrowly tailored situations, the best interests of a particular child may support some consideration of race, color, or national origin in placement decision-making. To be legitimate, however, consideration of these factors must grow out of the unique needs of a particular child. The 1997 policy guidance provides insight into the types of consideration which may be permissible:

[I]t is conceivable that an older child or adolescent might express an unwillingness to be placed with a family of a particular race. In some states older children and adolescents must consent to their adoption by a particular family. In such an individual situation, an agency is not required to dismiss the child’s express unwillingness to consent in evaluating placements.

In very carefully circumscribed instances such as these, consideration of race, color or national origin may be appropriate under the law. Even in situations such as these, however, the caseworker should not blindly defer to the young person. Rather, this should be seen as a situation in which the child may need counseling and agencies’ actions in such cases will be carefully scrutinized to ensure that there are not more narrowly tailored responses available to meet the child’s expressed reluctance.

When a child has a specific need relating to race, color, or national origin that need as well as less impactful methods of addressing the child’s need should be carefully documented in the child’s case file. Doing so will help prevent the routine consideration of race, color, or national origin that the law so clearly prohibits. Race, color, or national origin, then, should only rarely be taken into consideration when making placement decisions.

Two important issues must be accounted for when race, color, or national origin influence a placement decision. First, race, color or national origin cannot be considered for certain categories of children. For instance, infants are presumed to have no special needs concerning race, color, or national origin. As such, consideration of race, color, or national origin during placement decision-making for an infant cannot grow out of the unique needs of the individual child and any consideration of them when making decisions regarding infants is prohibited. Secondly, any consideration of race, color, or national origin will be subjected to strict scrutiny and must be narrowly tailored to meet a compelling governmental interest. Thus, even in a situation where race, color, or national origin may be properly considered, the agency’s response must not be overly broad and the agency must seek out the least restrictive means of addressing the individualized needs of the specific child. Responses to a child’s individualized

97 See Removal of Barriers to Interethnic Adoption, in ADMINISTRATION FOR CHILDREN AND FAMILIES, GUIDANCE FOR FEDERAL LEGISLATION—THE SMALL BUSINESS AND JOB PROTECTION ACT OF 1996 (1997). 94 needs regarding race, color, or national origin must be narrowly tailored to meet that specifically articulated need.

§10.4.4 MEPA-IEP and the Indian Child Welfare Act

MEPA-IEP specifically provides that its provisions do not apply to any child who qualifies as an “Indian child” under the ICWA.98 Because ICWA applies only to children who are members of or eligible for membership in a federally recognized Indian tribe (i.e., one who meets the definition of “Indian child”), MEPA-IEP’s provisions would apply to those children who are of Native American heritage but who are not member of or eligible for membership in a tribe.

§10.4.5 Enforcement

MEPA-IEP contains strict enforcement mechanisms. First, violations of the MEPA-IEP’s requirements may constitute a violation of Title VI of the Civil Rights Act of 1964.99 Next, failure to comply with the statute’s mandates may result in substantial financial penalties for the state in the form of lost Title IV-B funding.100 Similarly, a state may lose Title IV-E funds if it violates the statute. 101 Specifically, the statute provides for a penalty of a 2-percent reduction in the state’s Title IV-E funds for the fiscal year for a first violation, a 3-percent reduction for a second violation, and a 5-percent reduction for the third violation. These penalties could easily run into the tens of millions of dollars. Finally, the statute explicitly provides an individual cause of action for any individual child or prospective foster or adoptive parent who has been aggrieved as a result of a violation of the statute.102 MEPA-IEP provides a two year statute of limitations for bringing an action.103

§10.5 The Foster Care Independence Act (Chaffee Act)

Although discussed in more detail in Chapter 23, the Foster Care Independence Act (commonly referred to as the Chaffee Act) merits a brief mention here. For some time it has been clear that youth who age out of the foster care system without having found a stable family face

98 42 U.S.C. § 674(d)(4); 42 U.S.C. § 1996b(3).

99 42 U.S.C. § 1996b; see also A GUIDE TO THE MULTIETHNIC PLACEMENT ACT, supra note __, at16.

100 42 U.S.C. § 623(a); 45 C.F.R. § 201.6(a).

101 42 U.S.C 674(d).

102 42 U.S.C. § 674(d)(3).

103 Id. 95 major obstacles in their transition to young adulthood.104 Among the challenges these young people face are lack of adequate education, lack of marketable job skills, homelessness, poverty, teen pregnancy, and involvement in the juvenile and criminal justice systems. In order to address these problems, in 1986 Congress amended Title IV-E to establish the Independent Living Program. The Program aims to provide services to older foster youth to prepare them for adulthood. In 1999 Congress expanded the services available to these youth by amending various provisions of Title IV-E. Basically, the Chaffee Act established the Chaffee Foster Care Independence Program, which allowed states to provide Medicaid coverage to youth 18 to 21- years-of-age who are in foster care on their 18th birthday, permitted foster care youth to have assets valued at up to $10,000 and remain eligible for Title IV-E funding (up from only $1000), required state child welfare authorities to ensure that foster parents are prepared initially and on an ongoing basis to care for the youth placed in their homes, and authorized increased adoption incentive payments to states to aide in establishing permanent homes for these youth.

§10.6 Fostering Connections to Success and Increasing Adoptions Act

The Fostering Connections to Success and Increasing Adoptions Act (Fostering Connections Act),105 which amends numerous provisions of Titles IV-B and IV-E, became law on October 7, 2008. In broad terms, these amendments seek to maintain a child’s ties with family, expedite children’s passage through the foster care system, provide prompt permanency, and achieve better outcomes for youth once they leave the foster care system. More specifically, the Fostering Connections Act: 1) expands permanency options for foster children and youth, 2) requires increased efforts of state child welfare authorities to locate members of a child’s kinship network where that child is in or at risk of entering the child welfare system, 3) requires state child welfare authorities to undertake more aggressive efforts to notify a child’s adult relatives that the child has entered the foster care system, 4) permits waiver of certain foster home licensing rules in order to place a child with relatives, 5) permits states to maintain youth in foster care until age 21 under certain circumstances, 6) requires that the agency work with youth close to aging out of foster care to develop a plan for transitioning to independence, 7) encourages educational stability by requiring state child welfare authorities to coordinate with educational providers, 8) ensures children in foster care have access to health care, 9) ensures that when possible siblings are placed together, 10) permits Indian tribes to directly access Title IV-E funds rather than having to work through states to receive these funds, 11) provides incentives for adoption of children from the foster care system. Each of these goals will be discussed briefly.

§10.6.1 Expanded Permanency Options

104 MARTHA SHIRK & GARY STANGLER, ON THEIR OWN: WHAT HAPPENS TO KIDS WHEN THEY AGE OUT OF THE FOSTER CARE SYSTEM (2004).

105 Pub. L. No. 110-351; 42 U.S.C. § 621 et seq.; 42 U.S.C. § 670, et seq. 96 The Fostering Connections Act permits each state to establish a subsidized kinship guardianship program. Under such a program “grandparents and other relatives” who have cared for a child in the role of foster parents and who are willing to make a permanent commitment to raising the child may become legal guardians of the child. This program would work much the same way as the adoption assistance program. The adult relative would be given guardianship over the foster child that is intended to be permanent. The relative-guardian would receive financial assistance to provide care for that child. Among other requirements, to be eligible for a subsidized guardianship, the relative must have cared for the child as a foster care provider for 6 consecutive months. Additionally, the state can be reimbursed by the federal government for up to $2000 per child for nonrecurring expenses related to getting the guardianship put in place (e.g., filing fees). Before a relative-guardian may receive kinship guardianship assistance payments, the agency must conduct a criminal background check using national crime information data bases of the guardian and any other adult living in the home. Moreover, before placing a child in a kinship guardianship, the case worker must document the steps that were taken to determine that returning the child to the parent is not an appropriate permanency plan, why placement with a relative in a permanent guardianship will serve the child’s best interests, that adoption by the relative has been discussed and why adoption is not being pursued, and what efforts were made to discuss the matter with the child’s parents.

§10.6.2 Locating Adult Relatives

The amendments permit the DHHS to make a limited number of matching grants to the individual states, local, tribal or private agencies to help children who are in or are at risk of entering the foster care system to reconnect with adult relatives. Among the services that may be made available through these grants are kinship navigator programs, which assist adult caregivers in locating services that will assist them in providing for the needs of a child who is placed with them. Included in the bundle of services that should be made available through the kinship navigator program is assistance in locating and obtaining legal counsel.

These grants may also be used to implement “intensive family-finding efforts” to locate members of the child’s extended family, to work toward reestablishment of relationships with these newly located relatives, and to find permanent family placements for children.

Family connection grants may also be used to fund “residential family treatment” programs which would “enable parents and their children to live in a safe environment for a period of not less than 6 months” and which would provide various services to the child and the parent, either in that program or by way of referral to another program.106

§10.6.3 Providing Notice to Relatives

The Fostering Connections Act amends Title IV-E to require that each state’s plan provide that within 30 days of the child’s removal from the parental home state authorities will 106 42 U.S.C. § 627. 97 “exercise due diligence to identify and provide notice to all adult grandparents and other adult relatives of the child” unless there has been family or domestic violence involving that adult.107 The statute contains s number of requirements for the information that must be provided in such a notification.

§10.6.4 Waiving Licensing Rules

The statute clarifies that non-safety related licensing rules may be waived to facilitate placement of children into relative foster homes.108 However, such waivers must be made on a case-by-case basis and may not be made as a matter of policy. Each state may define for itself what constitutes a “non-safety” licensing rule.

§10.6.5 Extending Age of Foster Care Placement

While it is the federal government’s general policy to move children out of the foster care system and into permanent placements as soon as possible, for older youth, remaining in the foster care system longer may actually enhance the young person’s chances of a successful transition into adulthood.109 For instance, in a study comparing the outcomes of youth who were released from the foster care system at 18 and those who were maintained in the system until age 21, researchers at Chapin Hall found evidence that youth maintained in the system until age 21 had improved outcomes in terms of education, earnings from employment, and delayed teen pregnancy.110 In part as a result of this research, effective October 1, 2010, the Act permits the federal government to provide funding to support youth if a state elects to extend their stays in the foster care system to the age of 21. To be eligible for Title IV-E funding between the ages of 18 and 21, the youth must be completing high school or an equivalent program, be enrolled in college or a program of vocational education, engaged in a program to obtain employment, employed for at least 80 hours per month or unable to be involved in one of these programs because of a medical condition.111

§10.6.6 Transition Plan

107 42 U.S.C. § 671(a)(29).

108 42 U.S.C. § 671(a)(10).

109 For a summary of this research, see Mark E. Courtney, et al., Issues Brief, When Should the State Cease Parenting? Evidence from the Midwest Study (2007)(hereinafter Issues Brief). For a more detailed discussion of this research, see Mark E. Courtney, et al., Midwest Evaluation of Adult Functioning of Former Foster Youth: Outcomes at Age 21 (2007).

110 Issues Brief, supra note ___.

111 42 U.S.C. § 675 (8). 98 The Fostering Connections amendments require that during the 90 days immediately preceding a youth’s emancipation from foster care, whether at age 18 or older if the state chooses, agency caseworkers must meet with the youth and others who are supportive of the youth for the purpose of developing a transition plan for exiting the foster care system.112 The plan must be “personalized at the direction of the child” and must specifically address the youth’s housing, health insurance, education, available mentors, continuing support services that are available to the youth, work force supports, and employment services. The plan must be as detailed as the youth chooses.

§10.6.7 Educational Stability

Children entering the foster care system have often been required to move to a new school system. These moves have inevitably resulted in foster children losing momentum in their educational progress. The Fostering Connections Act seeks to address this problem by requiring that State child welfare authorities work with relevant educational authorities to ensure that children who are removed from the homes of their biological parents can remain in their elementary or secondary school after the move.113 Thus, each state’s plan for foster care must contain assurances that: (1) the appropriateness of the child’s educational placement is taken into consideration when making decisions about moving the child, and (2) foster placements are, whenever possible, are coordinated to ensure the child can remain in his or her school if doing so is in the best interests of the child. Where remaining in the school in which the child was enrolled at the time of placement is not in the child’s best interests, then the state plan must provide for the immediate placement of the child is an appropriate school setting. The federal government will also reimburse states for travel expenses associated with maintaining a child in his or her pre-placement school.

§10.6.8 Health Care

Children entering the foster care system have numerous health care needs, sometimes due to naturally occurring maladies or due to the neglect and abuse they have experienced before entering the system.114 There has been long-standing concern about the promptness, continuity, and quality of health care foster children receive while in care. Fostering Connections requires that states’ plans for delivery of services to children in foster care include a strategy to ensure that children are provided appropriate health care,115 including for mental and dental health. In addition to initial and periodic physical exams, the state may develop a plan for ensuring that the 112 42 U.S.C. §675(5)(H).

113 42 U.S.C. § 675(1)(G).

114 See Jan McCarthy & Maria Woolverton, Healthcare Needs of Children and Youth in Foster Care, in CHILD WELFARE FOR THE 21ST CENTURY: A HANDBOOK OF PRACTICES, POLICIES, AND PROGRAMS 129 – 147 (Gerald P. Mallon & Peg McCartt Hess, eds. 2005).

115 42 U.S.C. § 622(b)(15). 99 child’s medical records are created and stored electronically and are accessible as health care providers may change. The state must also include in its plan for delivery of foster care services a plan to ensure continuity of medical care and the agency may establish a medical home for the child.

§10.6.9 Keeping Siblings Together

Fostering Connections establishes a preference that when removed from the home of their parents, siblings will be placed together.116 Thus, it amends Title IV-E to require each state’s plan for providing foster care services must include a commitment that the state will make “reasonable efforts” to place siblings together, whether in the home of a relative, foster home with an unrelated person or for adoption unless placing the children in the same home would not protect the safety and well-being of one or more of the children. When siblings cannot be placed in the same home, the agency must provide for “frequent visitation or other ongoing interaction between the siblings” unless such frequent contact would not serve the child’s interests.117

§10.6.10 Tribal Access to Title IV-E Funds

Historically Indian tribes have not had direct access to Title IV-E funds. To gain access to this money, tribes have been required to develop agreements with state child welfare authorities in order to draw down their share of these federal dollars. Only about half the federally recognized tribes have such an agreement in place.118 The Fostering Connections Act attempts to change this by establishing a system that permits tribes or tribal consortiums to develop their own plans for providing child welfare services thereby gaining direct access to federal financial assistance.119

In order to avail itself of this direct federal funding, the tribe or tribal consortium must develop a plan for delivery of child welfare services similar to the plans states have been required to have in place. Each such plan must ensure that it has the capacity to provide for adequate fiscal management of federal programs and must describe the service areas and the populations that will benefit from the tribe’s child welfare services program. The law requires that the Secretary of DHHS provide technical assistance to tribes in order to assist them in developing a Title IV-E plan for the delivery of child welfare services. Additionally, tribes are eligible for a one time grant of up to $300,000 to offset the costs of developing and submitting the plan.120

116 42.U.S.C. § 671(a).

117 42 U.S.C. § 671(a)(31)(B).

118 Fostering Connections Resource Center. Available at www.fosteringconnections.org.

119 42 U.S.C. § 679c.

120 42 U.S.C. § 676(c). 100 §10.6.11 Adoption Incentives

In order to encourage states to press for the adoption of foster children who are in need of adoption services, the Fostering Connections Act increases adoption incentive payments to states. Since the enactment of ASFA, states have been able to receive incentive payments for each adoption of an older child or a child with special needs above the state’s base number of adoptions. The way this works is that the state has a base number of adoptions completed as of a certain date. For each adoption of an older child or a child with special needs beyond this base number, the state will be eligible to receive an incentive payment from the federal government.

Fostering Connections enhances these payments in several ways. First, it increases adoption incentive payment to the state for each child adopted beyond the base number from $2000 to $4000. If the adopted child is a special needs child, the state will receive an additional $4000. Finally, when the adoption involves an older child the state will be eligible for the $4000 incentive payment plus an additional $8000 payment (note that this payment is only available for each adoption exceeding the state’s base number of adoptions of older children). The intent of these incentives is to motivate the states to focus on the adoption of special needs and older children from the foster care system.

§10.7 Child Well-being Statutes

Numerous federal statutes unrelated to preventing and responding to child maltreatment play a crucial role in supporting families and promoting child wellbeing. Some of these establish federal programs to assist particular children or families (e.g., Temporary Assistance to Needy Families (TANF), Medicaid, and the food stamps program), while others provide block grants to the states to provide particular services (e.g., Social Services Block Grants (SSBG) and Maternal and Child Health Block grants). For this latter type of program, the state must establish the program, then individuals apply to the state to gain the benefit of the program. Some of these programs include at least some amount of direct funding for child welfare purposes (e.g., Temporary Assistance to Needy Families, Social Services Block Grants); others are supports generally available to assist categories of children and families, with some children and families who are involved in the child welfare system included in those categories (e.g., Child Care, Title I Education for the Disadvantaged). Some are open-ended entitlements, meaning that federal funding automatically expands or contracts annually to provide a defined benefit for all eligible persons (e.g., foster care, adoption assistances). Most programs are funded at specific levels rather than being limited only by the level of need (e.g., TANF and SSBG).

The following are the significant programs that provide assistance to qualifying individuals and include substantial child welfare services funding.

§10.7.1 Temporary Assistance to Needy Families

101 TANF is a block grant program created in 1996 to replace Aid to Families with Dependent Children (AFDC) which was an open-ended entitlement.121 It funds time-limited cash assistance to low income families with children. Receipt of TANF funds is contingent on meeting work-hour requirements. The program provides some work supports for participants (e.g., training, child care, transportation). Most TANF beneficiaries are children living with their parents, but a substantial percentage are children residing with relatives, some of whom are placed with that relative as a result of a child welfare proceeding. Indeed, TANF is a significant source of funding for child welfare services including support for children in relative placements as just mentioned, adoption, and related services. Additionally, individual states may choose to transfer a portion of their TANF funds to the SSBG program under Title XX, which funds may be used to provide child welfare services.

§10.7.2 Medicaid

Medicaid is an entitlement program that provides health care benefits to low income persons.122 Eligibility requirements, the specific services covered and the level of reimbursement for medical services provided vary from state-to-state.

Eligibility

States are required to cover pregnant women and children under 6-years-of-age with a family income below 133 percent of the federally established poverty rate, and children between 5 and 19-years-of-age whose family income is below the poverty line. Individual states may choose to also cover pregnant women and children whose family income is between 133 percent and 185 percent of the federally established poverty line. States must also provide Medicaid benefits to recipients of Title IV-E foster care and adoption assistance to age 18. Individual states may choose, under the Chaffee Act, to provide Medicaid benefits to young people who are or were in foster care to age 21. States may also choose to cover some children and youth who do not fall within these categories of recipients, and some states elect to provide services to foster children. States are prohibited from imposing cost sharing on services provided to children under 18-years-of-age or for services related to pregnancy.

Benefits

Medicaid includes both mandatory services (e.g., hospitalization, lab and x-ray fees, family planning and pregnancy-related services) and optional services (e.g., eyeglasses, prescription drugs, dental care, and case management). Those under 21-years-of-age are entitled to receive preventative care through “Early and Periodic Screening, Diagnosis and Treatment,” including comprehensive physical exams, immunizations, lead screening, vision and dental services, and other healthcare services necessary to address medical need identified through the

121 Pub. L. No. 104-193; 42 U.S.C. §§ 601 – 619.

122 42 U.S.C §§ 1396 – 1396v. 102 exams. Children receiving Medicaid services may receive those services through managed care organizations.

§10.7.3 State Children’s Health Insurance Program

In 1997 Congress enacted the State Children’s Health Insurance Program (SCHIP).123 The program was reauthorized and expanded to cover more children in 2009. The SCHIP program establishes a defined federal financial commitment in order to provide medical care to children who are ineligible for Medicaid because their family income is too high yet who lack health insurance. Often these children hail from working poor families. Currently, the program covers children and youth under age 19 whose families earn less that approximately $36,200 per years (for a family of four).124 States may implement their SCHIPS program by expanding their Medicaid program, by establishing an entirely separate program or by combining the two programs.

§10.7.4 Supplemental Security Income

The Supplemental Security Income (SSI) program is a means tested program, administered by the federal government, which was established in 1972.125 To receive benefits under this program, the individual must meet income eligibility requirements and have a qualifying disability (e.g., physical handicap, mental illness, etc.). SSI is fully federally funded and individual states do not have to match the federal funds.

§10.7.5 Other Federal Programs

In addition to the programs already discussed, there are numerous other programs that may provide aide to children and families involved in child welfare proceedings. These include the following:

 Food Stamps—a means tested entitlement program.126

 The Special Supplemental Nutrition Program for Women, Infants, and Children (WIC)— a non-entitlement program that provides nutritional support to low income pregnant women and their children to age 5.127

123 Pub. L. No. 105-33; 42 U.S.C. §§ 1397aa – 1397f.

124 Robert Longly, Health Insurance for Uninsured Children, available at: http://usgovinfo.about.com/od/medicarehealthinsurance/a/schip.htm.

125 Pub. L. 92-603; 42 U.S.C. §§ 1381 - 1383(d).

126 Pub. L. 88-525; 7 U.S.C. §§ 2011 – 2036.

127 42 U.S.C. § 1786. 103  Child Nutrition Program—funds, among other things, school breakfast and lunch programs.128

 Section 8 housing—is not an entitlement program, however, it provides rental assistance to low income persons.129

 The Child Care and Development Block Grant—provides child care assistance to low income working parents.130

 Head Start—a non-entitlement program aimed at providing quality early childhood education and comprehensive services to low-income, pre-school aged children.131

§10.8 Miscellaneous Federal Statutes

In addition to the child welfare and child wellbeing legislation discussed above, child welfare lawyers should be aware that other federal statutes may impact your handling of child welfare cases. In this portion of this chapter, we will discuss two statutes of this sort.

§10.8.1 Americans with Disabilities Act

The Americans with Disabilities Act (ADA)132 was enacted to address the long-standing and pervasive discrimination against persons with physical and mental disabilities.133 The statute intends to guarantee that persons with disabilities have the same access to services, programs and activities as persons without disabilities. Thus, the ADA requires that in certain circumstances public bodies make reasonable accommodations for persons with qualifying disabilities.134

There are three general areas of concern regarding the application of the ADA to child welfare cases. First, the ADA guarantees that all litigants have reasonable access to legal proceedings.135 The states make reasonable accommodations for parents and children with

128 42 U.S.C. §§ 1751 – 1790.

129 42 U.S.C. §§ 1437 – 13664.

130 42 U.S.C. § 9858.

131 42 U.S.C. §§ 9831 – 9843a.

132 42 U.S.C. § 12101 et seq.

133 42 U.S.C. § 12101(1).

134 See 42 U.S.C. § 1231(2).

135 See Tennessee v Lane, 541 U.S. 509 (2004)(upholding against Eleventh Amendment immunity attack Title II of ADA requiring that disabled persons have access to courthouses and that their disabilities be accommodated in order 104 disabilities to ensure that they may participate in the proceedings. This would include such things as physical access to the courthouse and assistive listening devices or sign language interpreters for the deaf.

The second area of concern relates to the substantive application of the ADA to efforts by state child welfare agencies to preserve and reunify families in which child maltreatment has occurred. It appears that the ADA does not directly apply to child welfare cases.136 To the extent that the ADA applies in the child welfare context, most courts have held that proceedings involving the termination of parental rights do not constitute “services, programs and activities” within the meaning of the ADA, so the ADA does not act to bar proceedings to terminate parental rights.137 Some courts have held that the ADA applies to a limited extent to child welfare proceedings.138 These courts have generally held that if the state has met the “reasonable efforts” requirement it has also met the ADA’s “reasonable accommodation” requirement.139 Although the ADA may apply to the agency’s efforts to reunify and the types of services offered, it does not provide a defense to a termination of parental rights action.140

Finally, the ADA applies to children who are the subject of child protective proceedings to protect them from discrimination based upon a disability. For instance, a child care center must make an individualized determination as to whether a particular child’s disability should be accommodated by the program.141

§10.8.2 Children’s Health Act of 2000

The Children’s Health Act of 2000 includes provisions regarding the rights of children who are placed in a “non-medical, community based facility for children” such as group homes or residential treatment facilities.142 The Act protects children placed in such facilities from that they may participate in legal proceedings); see generally, James Schmeling, Disability Civil Rights Law and Policy: Accessible Courtroom Technology, 12 WM. & MARY BILL OF RTS. J. 825 (2004).

136 In re B.S., 693 A.2d 716 , 720 (Vt. 1997); State v Raymond C. (In re Torrance P.), 522 N.W.2d 243 (Wis. 1994).

137 Id.; see, also, Adoption of Gregory, 747 N.E.2d 120 (Mass. 2001); In re Anthony P., 84 Cal. App. 4th 1112 (2000); Stone v Daviess County Div. Child. & Fam. Serv., 656 N.E.2d 824 (Ind. Ct. App. 1995).

138 See, e.g., In re Terry, 610 N.W.2d 563 (Mich. Ct. App. 2000).

139 See, e.g., J.T. v Arkansas Dep’t. of Human Serv., 947 S.W.2d 243 (Art. 1997); In re Welfare of A.J.R., 896 P.2d 1302 (Wash. App. 1995); In re Angel B., 659 A.2d 277 (Me. 1995); In Interest of C.M., 526 N.W.2d 562 (Iowa Ct. App. 1994).

140 See, e.g., People v T.B., 12 P.3d 1221 (Colo. App. 2000); In re Terry, supra note ___.

141 See U.S. DEPT. OF JUSCICE, CIVIL RIGHTS DIV., COMMONLY ASKED QUESTIONS ABOUT CHILD CARE CENTERS AND THE AMERICANS WITH DISABILITIES ACT, available at www.usdoj.gov/crt/ada/childq&a.htm.

142 42 U.S.C. § 290jj. 105 physical or mental abuse, corporal punishment and restraints or involuntary seclusion imposed for the purpose of discipline or for convenience. The statute strictly limits the use of restraints and seclusion to those members of the staff of such programs certified by the state and trained in taking such action.143

§10.9 A Case Example: Applying Selected Federal Funding Streams and Statutory Requirements.

It may be instructive in understanding how the various federal statutes interact to consider them in the context of a specific child welfare case:

Laura is a 22-year-old single young woman who is pregnant with her first child and is staying in the home of friends. Laura had an unfortunate childhood. Her mother is a long- standing polysubstance abuser whose drugs of choice are marijuana, cocaine, and alcohol, although she has at times used other substances. To support her drug habit, Laura’s mother sometimes resorted to prostitution. During her childhood, Laura was sexually abused by several of her mother’s male partners. Laura was removed from her mother’s care at the age of 11 and placed into the foster care system. By the time she aged out of foster care at 18, Laura had lived in nine foster homes, a residential treatment facility, and a group home. Laura did not finish high school and has struggled with homelessness and poverty since her emancipation. Although Laura has no contact with her baby’s father at this time, he is a thirty-eight-year-old man she met in her neighborhood.

Because she is living in poverty, Laura receives public assistance under the TANF program and receives monthly food stamps, as well. Also, because of her pregnancy, she is eligible to receive supplemental nutritional services through the WIC program. In addition to these more general services, because there is an elevated risk of child abuse or neglect, Laura is eligible to receive nurse home-visitor services paid for by Title IV-B’s Promoting Safe and Stable Families program as well as early intervention services provided through CAPTA. The nurse home-visitor provides educational support to Laura about her pregnancy, developmental information about the baby she will soon have, and acts as a conduit to other services. For instance, the nurse referred Laura to the local housing office for Section 8 housing. Unfortunately, there are no current housing units available, and the wait list is long.

Despite these efforts, at the time Laura gave birth to her son, Michael, he was born with both THC and cocaine metabolites in his system. When interviewed by a hospital social worker, Laura admitted that she smoked marijuana off and on throughout her pregnancy—most recently three days before her delivery—and used cocaine only the day before giving birth to Michael. Michael was born two weeks prematurely, although he is 5 pounds and 13 ounces. While in the hospital, he experienced some mild tremors and rigidity, which the doctors ascribe to his prenatal exposure to illicit drugs. Because of Michael’s condition, CAPTA’s mandatory reporting law,

143 Id. 106 which has been integrated into the state’s child protection law, the doctor attending his birth files the necessary report with children’s protective services. A caseworker is assigned to investigate the report—which is financially supported, in part, by CAPTA.

The worker interviews Laura and observes Michael. During the interview, Laura explains that her drug use is the result of the stress of her pregnancy and her poverty. She has no place to go since her friends have informed her that she cannot return to live with them. She says that she very much wants help for her drug usage and that she desperately wants to raise Michael and does not want him placed into foster care. At the conclusion of the worker’s investigation, he substantiates that Michael is a neglected child. He files a petition with the local family court and, accessing funds provided through Title IV-E by the Fostering Connections Act, and after an assessment of her needs, he places Laura into a residential drug treatment program where Michael will join her when he is ready for release from the hospital in a few days.

Because a court petition was filed, the court, consistent with the requisite provisions of CAPTA, appoints an attorney to represent Michael’s interests as his guardian ad litem. At the initial hearing, held within 48 hours of the filing of the petition, the court finds that there is sufficient evidence of neglect to permit the case to proceed, finds that reasonable efforts were made or were unnecessary to preserve the family, and that placement with Laura without court intervention would be contrary to Michael’s welfare, meeting the requirements of Title IV-E. Under state law, Michael “entered” foster care on the day the court authorized the case to proceed, so the state must conduct a permanency planning hearing in 12 months unless the case is resolved earlier.

Michael is released from the hospital and is placed with Laura in the drug treatment program. Laura is very happy that she is able to see her son daily and to parent him, although she quickly learns that it will be difficult to care for him while working to overcome her addiction. Her daily therapy sessions are very difficult as she begins to deal with the underlying traumas that have led her to use drugs. Laura’s substance abuse related treatment is paid for, in part, by the state’s substance abuse block grant portions of her treatment are covered under the state’s Title XX Social Services Block Grant, and Michael’s well baby visits are paid for by Medicaid. She continues to receive WIC, which pays for Michael’s formula.

The residential program is designed to last 90 days to six months depending upon the severity of the parent’s substance abuse. For the first couple of weeks, Laura does well. But as her treatment proceeds, she finds it harder to confront her past and to work through the trauma she has experienced. The stress is enormous and she sometimes lacks the energy to care for Michael. When a staff member of the program raises this issue with her, she has an angry outburst and leaves the program, leaving Michael behind. The program immediately contacts the CPS worker. The worker is unaware of any relative who could care for Michael, so he is placed into a foster home on an emergency basis while the worker seeks out possible relatives with which to place Michael. When Laura returns to the program three days later, she is informed that

107 she has been expelled and Michael placed in foster care. She meets with her worker and identifies several members of her extended family who may be able to provide for Michael. Consistent with federal law as adopted by the state, Michael is shortly thereafter placed in the home of Laura’s aunt who will pursue foster care licensing, a placement which is supported, in part, by Title IV-E funds.

By this time, the workers, utilizing the federally funded parent locator system, have contacted Michael’s father, William. Paternity is established but William indicates that he is in no position to care for his son. He relates an extensive history of drug usage, a long criminal record including two convictions for domestic violence, and a general unwillingness to parent the baby.

The court case proceeds. Michael is adjudicated a neglected child after Laura and William each admit various allegations in the agency’s petition. Michael’s placement continues to be funding through Title IV-E. Also consistent with the Fostering Connections Act, the agency makes a concerted effort to identify other relatives on both sides of Michael’s family, and several other potential relative caregivers are identified. These relatives are provided notice of the proceeding.

At the dispositional hearing, the agency recommends, and the court adopts, a permanency goal of reunification with Laura. By this time, she has reentered drug treatment, albeit in an intensive outpatient program. She is ordered to continue and complete the substance abuse treatment program, undergo psychological and psychiatric assessments, and to follow any recommendations regarding medication and mental health treatment, to complete parenting classes and, to visit Michael not less than two times per week under the supervision of her aunt. Her substance abuse treatment is paid for from Title XX and from state funds received through the federal Substance Abuse and Mental Health Services Administration, and the other services are paid for by IV-E funds as matched with state money.

After a couple of months in treatment, Laura again drops out. She continues to visit Michael; however, her aunt reports that she is belligerent and has come to some of the visits appearing to be intoxicated. The aunt reports that at the last visit Laura showed up with a man who scared the aunt and who, like Laura, was obviously high. The aunt is fed up and is no longer willing to care for Michael because of Laura’s behavior. The aunt says she believes a different permanent plan needs to be made for Michael.

The agency convenes a case meeting with the relevant parties to consider options. At the meeting are the workers, Michael’s guardian ad litem, Laura, and several relatives. There is a consensus that Laura has not made adequate progress. It is decided that the time has come, consistent with the ASFA, to institute a concurrent plan for Michael. He needs to be placed in a placement which will commit to providing for him permanently in the event that Laura or William cannot regain custody. Laura says she has heard on the street that William is back in

108 prison on a parole violation. Unfortunately, for one reason or another, none of the relatives is willing to commit to caring for Michael permanently. No other relatives can be identified, so Michael is placed with foster parents who are interested in adopting a child. Laura again insists that she wants to get clean and care for Michael, so she re-enters drug treatment.

Within a few weeks, however, Laura again drops out of treatment, and her whereabouts are unknown. Meanwhile, Michael has begun to show signs of developmental delay, which medical professionals attributed at least in part to prenatal exposure to illicit drugs. Another case conference is held. Michael’s lawyer explains that she recently attended some training funded by Title IV-E in which early termination of parental rights was one of the issues discussed. She believes the permanency goal should change to termination of parental rights and adoption. The workers were resistant. Even if Laura could get clean, the lawyer argued, she would not be able to meet Michael’s special needs.

In the end, the worker agrees, and a termination petition was filed. At the pretrial hearing on the petition, the judge referred the matter to the county’s new child protection mediation program. Laura had resurfaced and agreed to appear at the mediation. After carefully listening to the workers and Michael’s lawyer, Laura agreed that it was not fair to Michael to have to wait longer for her to be in a position to care for him. After consulting with her attorney, she decided to release her parental rights.

A hearing was scheduled at which Laura released her parental rights. William’s rights were involuntarily terminated. Michael is adopted by his foster parents. Because of his special needs, the foster parents will be eligible for a Title IV-E funded adoption subsidy, which will provide both a cash subsidy and Medicaid to help provide for his needs throughout his childhood.

§10.10 Conclusion

Since the federal government entered the child protection and foster care arena in the 1960s, its role and influence has steadily expanded. As the case of Laura and Michael demonstrates, today virtually no aspect of a child welfare case is free of the impact of federal law, either directly or indirectly. Thus, it is incumbent upon child welfare law practitioners, whether representing the child, the parents or the agency, to be intimately familiar with the workings of the various federal statutes in the field.

109 ELECTRONIC RESOURCE 1c: EVOLUTION OF DEPENDENCY COURT-HISTORICAL TIMELINE

Evolution of Child Welfare System: Historical Timeline

 In 1912, as a result of President Roosevelt’s 1909 White House Conference on Children, Congress created the United States Children’s Bureau.  In 1921, Congress passed the Shappard-Towner Act, which established Children’s Bureaus at the state level and promoted maternal-infant health.  In 1944, the Supreme Court of the United States confirmed the state’s authority to intervene in family relationships to protect children in Prince v. Massachusetts.144  In 1946, Aid to Dependent Children was added to the Social Security Act.  In 1946, Dr. Caffey, a pediatric radiologist in Pittsburgh, published the results of his research showing that subdural hematomas and fractures of the long bones in infants were inconsistent with accidental trauma.145  In 1962, following a medical symposium the previous year, several physicians headed by Denver physician C. Henry Kempe, published the landmark article The Battered Child Syndrome in the Journal of the American Medical Association. Through the article, Kempe and his colleagues exposed the reality that significant numbers of parents and caretakers batter their children, even to death. The Battered Child Syndrome describes a pattern of child abuse resulting in certain clinical conditions and establishes a medical and psychiatric model of the cause of child abuse. The article marked the development of child abuse as a distinct academic subject. The work is generally regarded as one of the most significant events leading to professional and public awareness of the existence and magnitude of child abuse and neglect in the United States and throughout the world.146  In 1962, in response to The Battered Child, the Children’s Bureau held a symposium on child abuse, which produced a recommendation for a model child abuse reporting law.  By 1967, 44 states had adopted mandatory reporting laws. The remaining six states adopted voluntary reporting laws. All states now have mandatory reporting laws. Generally, the laws require physicians to report reasonable suspicion of child abuse. Reporting laws, now expanded to include other professionals and voluntary reporting by the public, together with immunity for good faith reporting, are recognized as one of the most significant measures ever taken to protect abused and neglected children. Reporting

144 321 U.S. 158 (1944).

145 John Caffey, Multiple Fractures in the Long Bones of Infants Suffering from Chronic Subdural Hematoma, 56 Am. J. Roentgenology 163 (1946).

146 C. Henry Kempe et al., The Battered Child Syndrome, 181 JAMA 17 (1962). 110 is recognized as the primary reason for the dramatic increases in cases of child abuse and neglect.  In 1971, the California Court of Appeals recognized the Battered Child Syndrome as a medical diagnosis and a legal syndrome in People v. Jackson.147  In 1974, Congress passed landmark legislation in the federal Child Abuse Prevention and Treatment Act (CAPTA).148 The Act provides states with funding for the investigation and prevention of child maltreatment, conditioned on states’ adoption of mandatory reporting law. The Act also conditions funding on reporter immunity, confidentiality, and appointment of guardians ad litem for children. The Act also created the National Center on Child Abuse and Neglect (NCCAN) to serve as an information clearinghouse. In 1978, The Adoption Reform Act was added to CAPTA. In 1984, CAPTA was amended to include medically disabled infants, the reporting of medical neglect and maltreatment in out-of-home care, and the expansion of sexual abuse to include sexual exploitation.  In 1980, Congress passed the Adoption Assistance and Child Welfare Act,149 designed to remedy problems in the foster care system. The Act made federal funding for foster care dependent on certain reforms. In 1983 the Act was amended to include “reasonable efforts.” The reasonable efforts amendment provided for special procedures before removing a child and reunification strategies after removal. Important provisions for case review were also included. The Act and its amendment essentially provided fiscal incentives to encourage states to prevent unnecessary foster care placements and to provide permanent homes for children in placement as quickly as possible. The law also gave courts a new oversight role.  In 1981, Title XX of the Social Security Act was amended to include the Social Services Block Grant to provide child protective services funding to states. This became the major source of state social service funding.  In 1986, Congress passed the Child Abuse Victims’ Rights Act, which gave a civil damage claim to child victims of violations of federal sexual exploitation law.  In 1991, Congress passed the Victims of Child Abuse Act of 1990, aimed at improving the investigation and prosecution of child abuse cases.  In 1993, as part of the Omnibus Budget and Reconciliation Act, Congress provided funding for state courts to assess the impact of Public Law 96-272 (the Adoption Assistance and Child Welfare Act) on foster care proceedings, to study the handling of child protection cases, and to develop a plan for improvement. Funds were made available to states through a grant program called the State Court Improvement Program. The program was the impetus behind a nationwide movement to improve court practice in dependency cases.

147 18 Cal. App. 3d 504, 506-508 (1971); see also Estelle v. McGuire, 502 U.S. 62 (1991) and State v. Henson, 33 N.Y.2d 63 (1973) (describing Battered Child Syndrome).

148 Pub. L. No. 93-273; 42 U.S.C. §§ 5101 through 5119 (1996) (current version amended and reenacted through the Keeping Children and Families Safe Act of 2003, Pub. L. No. 108-36).

149 Pub. L. No. 96-272; 42 U.S.C. §§ 670 through 676 (2004). 111  In 1997, Congress Passed the Adoption and Safe Families Act of 1997 (ASFA).150 ASFA represents the most significant change in federal child welfare law since the Adoption Assistance and Child Welfare Act of 1980. ASFA includes provisions for legal representation, state funding of child welfare and adoption, and state performance requirements. In general, ASFA is intended to promote primacy of child safety and timely decisions while clarifying “reasonable efforts” and continuing family preservation. ASFA also includes continuation funding for court improvement.151  In 2008 Congress passed The Fostering Connections to Success and Increasing Adoptions Act (Fostering Connections Act),152 which amends numerous provisions of Titles IV-B and IV-E. The Fostering Connections Act: 1) expands permanency options for foster children and youth, 2) requires increased efforts of state child welfare authorities to locate members of a child’s kinship network where that child is in or at risk of entering the child welfare system, 3) requires state child welfare authorities to undertake more aggressive efforts to notify a child’s adult relatives that the child has entered the foster care system, 4) permits waiver of certain foster home licensing rules in order to place a child with relatives, 5) permits states to maintain youth in foster care until age 21 under certain circumstances, 6) requires that the agency work with youth close to aging out of foster care to develop a plan for transitioning to independence, 7) encourages educational stability by requiring state child welfare authorities to coordinate with educational providers, 8) ensures children in foster care have access to health care, 9) ensures that when possible siblings are placed together, 10) permits Indian tribes to directly access Title IV-E funds rather than having to work through states to receive these funds, 11) provides incentives for adoption of children from the foster care system.

ELECTRONIC RESOURCE 1d: CHAPTER 11 – U.S. SUPREME COURT CASES REGARDING CHILD WELFARE LAW

Chapter 11 U.S. SUPREME COURT CASES REGARDING CHILD WELFARE

150 Pub. L. No. 105-89.

151 Rollin, Legislative Update, 16 A.B.A. Child Law Pract., 166-171 (1998).

152 Pub. L. No. 110-351; 42 U.S.C. § 621 et seq.; 42 U.S.C. § 670, et seq. 112 by Ann M. Haralambie153

The following U.S. Supreme Court cases form the constitutional parameters for the relationship between the state, parents, and children. Many do not deal directly with child welfare, but they are used to define the constitutional boundaries which apply in child welfare cases. They provide that parental rights are fundamental and entitled to great deference. However, they are not absolute. Children have their own liberty interests worthy of constitutional protection. The state has the right to act to protect children, but cannot always be held responsible for its failure to protect those not directly in its custody. Even when the state is motivated by a desire to protect children, it is limited in the circumstances and means it can use to undertake that protection.

§ 11.1 Constitutional Rights of Parents § 11.1.1 Meyer v. Nebraska The Supreme Court, in Meyer v. Nebraska,154 addressed a parent’s right to control the education of his or her child. A parochial school teacher was criminally charged and convicted for teaching German to a ten-year-old child in violation of a statute prohibiting teaching in a language other than English or teaching a foreign language to children who had not completed the eighth grade. The Supreme Court held that the concept of liberty, as protected by the Fourteenth Amendment, denotes “not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.”155 The Court concluded that the statute was unconstitutional. It held that the teacher had a constitutionally protected liberty interest in teaching. Furthermore, the parents had a constitutionally protected liberty interest in educating their children as they saw fit. The Court noted that “[m]ere knowledge of the German language cannot reasonably be regarded as harmful. Heretofore it has been commonly looked upon as helpful and desirable. Plaintiff in error taught this language in school as part of his occupation. His right thus to teach and the right of parents to engage him so to instruct their children, we think, are within the liberty of the Amendment. . . . Latin, Greek, Hebrew are not proscribed; but German, French, Spanish, Italian, and every other alien speech are within the ban. Evidently the Legislature has attempted materially to interfere with the calling of modern language teachers, with the opportunities of pupils to acquire knowledge, and with the power of parents to control the education of their own.”156 This case is often cited in appellate child welfare cases as a foundational case recognizing that parents’ family rights are a fundamental liberty interest and entitled to

153 Ann M. Haralambie, J.D., is a certified family law specialist practicing in Tucson, Arizona. She is also an author and speaker in the fields of family and children’s law.

154 262 U.S. 390 (1923).

155 Id. at 399.

156 Id. at 400-401. 113 constitutional protection. § 11.1.2 Pierce v. Society of Sisters In Pierce v. Society of Sisters,157 the Supreme Court addressed a parent’s right to decide the school his or her child attends. The constitutionality of a compulsory education law that required that children be educated in public schools was at issue. The Oregon Compulsory Education Act required every child between the ages of 8 and 16 years to attend public schools. Oregon argued that the state had the authority to require children to attend schools, and that compulsory public school attendance did not deprive parents of their rights. A parochial school and a private military school sought to enjoin the law, which prevented parents from sending children to their schools. The Supreme Court held that the statute was unconstitutional. The Court upheld an injunction issued against enforcement of the law as an arbitrary, unreasonable, and unlawful interference with the school’s patronage, destroying their business and property. The Court held that the Act unreasonably interfered with the liberty of parents and guardians to direct the upbringing and education of children under their control. Although the state had the power to require children to attend school, it could not dictate which school a child attends. The Court stated: “The child is not the mere creature of the state; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.”158 This case is also frequently cited in child welfare cases to establish the right of parents to raise their children without undo government interference. § 11.1.3 Prince v. Massachusetts In Prince v. Massachusetts,159 a woman who was the guardian of her niece was criminally convicted for violating child labor laws, which prohibited boys under 12 and girls under 18 from selling newspapers, magazines, or other merchandise on any street or public place. She furnished her niece with Jehovah’s Witness magazines, which the child then sold in the street. The aunt claimed her right to permit the actions by her niece both as a First Amendment matter of freedom of religion and as a Fourteenth Amendment due process parental right. The Supreme Court explained that state law restricting child labor did not impermissibly violate the parent’s or guardian’s First Amendment right to religious freedom. The Court stated: The parent's conflict with the state over control of the child and his training is serious enough when only secular matters are concerned. It becomes the more so when an element of religious conviction enters. Against these sacred private interests, basic in a democracy, stand the interests of society to protect the welfare of children, and the state's assertion of authority to that end, made here in a manner conceded valid if only secular things were involved. The last is no mere corporate concern of official authority. It is the interest of youth itself, and of the whole community, that children be both safeguarded from abuses and given opportunities for growth into free and independent well-developed men and citizens.160

157 268 U.S. 510 (1925).

158 Id. at 535.

159 321 U.S. 158 (1944).

160 Id. at 165. 114 The Court recognized the “rights of children to exercise their religion, and of parents to give them religious training and to encourage them in the practice of religious belief, as against preponderant sentiment and assertion of state power voicing it.”161 However, the Court also noted that: the family itself is not beyond regulation in the public interest, as against a claim of religious liberty.. . . And neither rights of religion nor rights of parenthood are beyond limitation. Acting to guard the general interest in youth's well being, the state as parens patriae may restrict the parent's control by requiring school attendance, regulating or prohibiting the child's labor, and in many other ways. Its authority is not nullified merely because the parent grounds his claim to control the child's course of conduct on religion or conscience. Thus, he cannot claim freedom from compulsory vaccination for the child more than for himself on religious grounds. The right to practice religion freely does not include liberty to expose the community or the child to communicable disease or the latter to ill health or death. The catalogue need not be lengthened. It is sufficient to show . . . that the state has a wide range of power for limiting parental freedom and authority in things affecting the child's welfare; and that this includes, to some extent, matters of conscience and religious conviction.162 The court also noted that the state has broader power to regulate the conduct of children than its power to regulate adult behavior. The legislative intent behind the child labor law was to prevent the negative effects of child employment and the possible harms inherent in street activities. Although the child’s aunt accompanied her during the sales, the court concluded that this activity nonetheless violated the state law. Many subsequent cases quote the Court’s statement that “[p]arents may be free to become martyrs themselves. But it does not follow they are free, in identical circumstances, to make martyrs of their children before they have reached the age of full and legal discretion when they can make that choice for themselves.”163 § 11.1.4 Wisconsin v. Yoder Wisconsin v. Yoder164 involved a Wisconsin law that required children to attend school until age 16. Amish and Mennonite families in Wisconsin objected to the law because the period from the end of eighth grade to their adult baptism was very important for indoctrination into the Amish faith. The parents contended that if their children went to public high school the opportunity for religious education would be lost. The Court found for the Amish and Mennonite parents stating that the children continued to receive education at home and that the state’s interest in using education to produce productive members of society was met by the vocational schooling the youth received from their parents. Therefore, the Court held that the Amish parents had the protection of the religious clause and their right to freedom of religion dominated the state’s interests. The Court conceded that “activities of individuals, even when religiously based, are often subject to regulation by the States in the exercise of their undoubted power to promote the health,

161 Id.

162 Id. at 166-176 (citations and footnotes omitted).

163 Id. at 170.

164 406 U.S. 205 (1972). 115 safety, and general welfare, or the Federal Government in the exercise of its delegated powers.”165 However, the Court pointed out that the issue raised in this case, “is not one in which any harm to the physical or mental health of the child or to the public safety, peace, order, or welfare has been demonstrated or may be properly inferred.”166 Justice Burger, writing for the Supreme Court, concluded that “the record in this case abundantly supports the claim that the traditional way of life of the Amish is not merely a matter of personal preference, but one of deep religious conviction, shared by an organized group, and intimately related to daily living.”167 The Court detailed how the compulsory education law interfered with the Amish and Mennonite parents’ right to free exercise of religion for their families and children and concluded that the compulsory education law violated their First Amendment rights. In a famous dissent, Justice William O. Douglas noted that the wishes of the people most directly affected—two of the teenage students involved, Vernon Yutzy and Barbara Miller— were not considered. The students were not parties, nor were they consulted. Justice Douglas stated in part, “The Court’s analysis assumes that the only interests at stake in the case are those of the Amish parents on the one hand, and those of the State on the other. The difficulty with this approach is that, despite the Court’s claim, the parents are seeking to vindicate not only their own free exercise claims, but also those of their high-school-age children.”168

§ 11.1.5 Troxel v. Granville Troxel v. Granville169 involved the constitutionality of Washington’s third-party visitation statute. The statute provided that any person could petition the court for visitation rights at any time and that the court could grant visitation rights whenever visitation may serve the best interest of the child. The grandparents of children born out of wedlock petitioned a Washington court for the right to visit their granddaughters. The children’s mother agreed to grandparent visitation but wanted the visits to be limited to one day each month. The court granted the grandparent’s request for more visitation over the objections of the children’s mother. The children’s mother appealed the visitation order. The court of appeals reversed the lower court’s order. The grandparent’s appealed, and the Washington Supreme Court affirmed the appellate court’s decision. The U.S. Supreme Court granted certiorari to consider the constitutionality of the Washington statute. In a plurality opinion, the U.S. Supreme Court found that the statute violated the mother’s due process liberty interest in the care, custody, and control of her children. The Court pointed out that the statute did not provide any deference to the parent’s wishes and left the question of

165 Id. at 220.

166 Id. at 230 (footnote omitted).

167 Id. at 216.

168 Id. at 241 (Douglas, J., dissenting).

169 530 U.S. 57 (2000). 116 what was in the children’s best interest solely to the judge. The Court reaffirmed the presumption that fit parents can make decision that are in the best interests of their children and affirmed the Washington Supreme Court’s order. The Court stated that “if a fit parent's decision of the kind at issue here becomes subject to judicial review, the court must accord at least some special weight to the parent's own determination.”170 The Court noted that it was not holding that all nonparental visitation statutes violated the due process clause per se. The decision in this case was based on the breadth of the Washington statute. NOTE: Parameters of Parents’ Rights. Taken together, these early cases, Meyer, Pierce, and Prince, set the basic parameters of the relationship between parent and state. They establish the principle that parents have a fundamental liberty interest in directing the upbringing of their children, which is protected by the Due Process Clause of the Fourteenth Amendment on which the state may infringe only for compelling reason and only insofar as that infringement is necessary to protect the state’s interest. This basic framework has guided the courts’ analysis of issues involving family life in a variety of circumstances, including matters pertaining to child welfare law.171

§ 11.2 Constitutional Rights of Children and Youth § 11.2.1 In re Gault In this landmark case, In re Gault,172 the Supreme Court declared that neither the Fourteenth Amendment nor the Bill of Rights is exclusively for adults. The Arizona juvenile court committed Gerald Gault, a 15-year-old delinquent, to the state industrial school until his 21st birthday. The court administered a typically informal proceeding. The proceeding took place in chambers where the judge questioned the juvenile. The alleged victim was not present, no witnesses were sworn, and no transcript was made of the proceeding. Gault was given no notice of charges, no counsel, no protection from self-incrimination, and no opportunity to confront and cross-examine his accuser. The juvenile court reasoned that because children had no right to liberty they could be denied due process. Furthermore, the juvenile court argued that the lack of procedural protection did not violate any rights because a child had none. The Supreme Court held that the due process clause of the Fourteenth Amendment applied to delinquency adjudicatory proceedings. Specifically, the Court included the right to notice of charges, the right to confrontation, the right to cross-examination, the prohibition against self- incrimination, and the right to counsel. Under Gault, youth accused of violating the law have essentially the same rights as adults and they are recognized as independent persons, not merely property of their parents. NOTE: It is important to recognize that Gault did not address the representation of children

170 Id. at 70.

171 See, generally, Wisconsin v.Yoder, 406 U.S. 205 (1972) (right of Amish parents to direct educational aspects of their children’s upbringing pursuant to their religious convictions); Moore v. East Cleveland, 431 U.S. 494 (1977) (invalidating housing ordinance making it illegal for a grandchild to live in grandparent’s home); Troxel v. Granville, 530 U.S. 57 (2000) (right of fit parent to determine grandparent visitation).

172 387 U.S. 1 (1967). 117 in abuse, neglect, and dependency proceedings. As of 2010, there does not exist a federal requirement for legal representation of children involved in dependency proceedings. Child Abuse Prevention and Treatment Act Programs (CAPTA)173 requires that a “representative” be appointed to children involved in dependency proceedings. The CAPTA requirement, however, may be fulfilled by but does not mandate an attorney representative. Therefore, many children are appointed lay representatives who can be court-appointed special advocates, lay guardians ad litem, or other volunteers. Advocates have argued for the establishment of Gault-like requirements for dependency proceedings, including a right to client-directed counsel.174 One argument in support of a child’s entitlement to legal counsel in dependency cases is premised on the Mathews v. Eldridge175 due process test, described below,176 as a basis. In Mathews v. Eldridge,177 the U.S. Supreme Court applied a three-part test to determine whether a state action deprived a citizen of his due process rights. While this case does not deal with children’s law, it is important because it outlined the factors the court must look at in determining whether due process rights have been violated. The Court, citing Morrissey v. Brewer, 408 U.S. 471, 481 (1972), stated that “[D]ue process is flexible and calls for such procedural protections as the particular situation demands.”178 To determine what the “situation demands,” courts must weigh three factors: (1) “The private interest that will be affected;” (2) “The risk of an erroneous deprivation” of the private individual’s interest “through the procedures used” and the probable benefits of additional procedural requirements; and (3) the Government’s interest, including “fiscal and administrative burdens” that might result from additional procedural requirements.179 Recently, applying the three-part Matthews test to the question of whether a child has a due process right to legal counsel in neglect proceedings, the United States District Court for the Northern District of Georgia held that the Due Process Clause of the Georgia state constitution requires the appointment of legal counsel for a child when the state seeks to remove the child from parental custody.180 § 11.2.2 Tinker v. Des Moines Independent Community School Dist. In Tinker v. Des Moines Independent Community School Dist.,181 the Supreme Court held that students had a First Amendment right to wear arm bands in school to protest the Vietnam War.

173 42 U.S.C. §§ 5101 through 5107.

174 See LaShanda Taylor A Lawyer for Every Child: Client–Directed Representation in Dependency Cases, 47 Family Ct Rev, 605–633 (2009)

175 424 U.S. 319 (1976).

176 Jacob Smiles, A Child’s Due Process Right to Legal Counsel in Abuse and Neglect Dependency Proceedings, 37 FAM. L.Q. 485 (Fall 2003).

177 Id.

178 Id. at 334.

179 Id. at 335.

180 See Kenny A. v. Perdue, 356 F.Supp.2d 1353 (N.D.Ga 2005). 118 Justice Fortas, writing for the Court, wrote: “It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”182 This case is most frequently cited for the proposition that a student’s constitutional right to freedom of speech is of utmost importance and warrants protection. The Court noted that “[s]chool officials do not possess absolute authority over their students. Students in school as well as out of school are ‘persons' under our Constitution. They are possessed of fundamental rights which the State must respect.”183 The Court stated that“[i]n order for the State . . . to justify prohibition of a particular expression of opinion, it must be able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint. Certainly where there is no finding and no showing that engaging in the forbidden conduct would ‘materially and substantially interfere with the requirements of appropriate discipline in the operation of the school,’ the prohibition cannot be sustained.”184 § 11.2.3 Bellotti v. Baird In Bellotti v. Baird,185 the Supreme Court held that pregnant girls cannot be required to obtain parental consent for an abortion without providing them a hearing as to their maturity to make the decision without anyone else’s consent. The Massachusetts statute required that a minor received consent from both of her parents before she could have an abortion. If her parents refused to consent, she could obtain consent from a judicial order for good cause based on the judge’s decision that an abortion was in her best interest. The Court concluded that the statute placed an undue burden on a minor’s right to access abortion. It stated that every pregnant minor must be able to go directly to a court and request judicial consent for an abortion without being required to first consult her parents. The Court stated that a “child, merely on account of his minority, is not beyond the protection of the Constitution.”186 The Court went on to describe three reasons for treating a child’s constitutional rights differently than those of adults: “the peculiar vulnerability of children; their inability to make critical decisions in an informed, mature manner; and the importance of the parental role in child rearing.”187 With respect to the first reason, the Court noted that its concern “is demonstrated in its decisions dealing with minors' claims to constitutional protection against deprivations of liberty or property interests by the State. With respect to many of these claims, we have concluded that the child's right is virtually coextensive with that of an adult.”188 Further, “[v]iewed together, our cases show that although children generally are protected by the same constitutional guarantees against governmental deprivations

182 Id. at 506.

183 Id. at 511.

184 Id. at 509 (citation omitted).

185 443 U.S. 622 (1979).

186 Id. at 633.

187 Id. at 634.

188 Id. 119 as are adults, the State is entitled to adjust its legal system to account for children's vulnerability and their needs for ‘concern, . . . sympathy, and . . . paternal attention.’”189 With respect to the second reason, the Court stated that “States validly may limit the freedom of children to choose for themselves in the making of important, affirmative choices with potentially serious consequences. These rulings have been grounded in the recognition that, during the formative years of childhood and adolescence, minors often lack the experience, perspective, and judgment to recognize and avoid choices that could be detrimental to them.”190 With respect to the third reason, the Court explained the guiding role of parents in the upbringing of their children justifies limitations on the freedoms of minors. The State commonly protects its youth from adverse governmental action and from their own immaturity by requiring parental consent to or involvement in important decisions by minors. But an additional and more important justification for state deference to parental control over children is that . . . [the] affirmative process of teaching, guiding, and inspiring by precept and example is essential to the growth of young people into mature, socially responsible citizens. We have believed in this country that this process, in large part, is beyond the competence of impersonal political institutions. Indeed, affirmative sponsorship of particular ethical, religious, or political beliefs is something we expect the State not to attempt in a society constitutionally committed to the ideal of individual liberty and freedom of choice.191 The Court emphasized the special character of decisions regarding abortion, because that decision had been given the status of a constitutional right.192 The Court also noted the exigency of the abortion decision, which unlike a decision such as whether to marry, may not be delayed without being be made “by default with far-reaching consequences.”193 The Court held that the statute was unconstitutional and that to be constitutional, a statute must provide that: every minor must have the opportunity-if she so desires-to go directly to a court without first consulting or notifying her parents. If she satisfies the court that she is mature and well enough informed to make intelligently the abortion decision on her own, the court must authorize her to act without parental consultation or consent. If she fails to satisfy the court that she is competent to make this decision independently, she must be permitted to show that an abortion nevertheless would be in her best interests. If the court is persuaded that it is, the court must authorize the abortion. If, however, the court is not persuaded by the minor that she is mature or that the abortion would be in her best interests, it may decline to sanction the

189 Id. at 635 (citation omitted).

190 Id. (footnote omitted).

191 Id. at 637-638 (citations and footnote omitted).

192 Id. at 641 (“But we are concerned here with a constitutional right to seek an abortion. The abortion decision differs in important ways from other decisions that may be made during minority. The need to preserve the constitutional right and the unique nature of the abortion decision, especially when made by a minor, require a State to act with particular sensitivity when it legislates to foster parental involvement in this matter.”).

193 Id. at 643. 120 operation.194 The Court did say that “the court may deny the abortion request of an immature minor in the absence of parental consultation if it concludes that her best interests would be served thereby, or the court may in such a case defer decision until there is parental consultation in which the court may participate. But this is the full extent to which parental involvement may be required.”195 § 11.2.5 Parham v. J.R. et al Parham v. J.R. et al196 was a class action brought by Georgia children who had been voluntarily committed to state mental health institutions by their parents or guardians. The Georgia District Court ruled in favor of the children finding that the state statutory scheme was unconstitutional because in did not protect the children’s due process rights. The court held that minors who are going to be voluntarily committed are entitled to an adversary-type hearing before an impartial tribunal. The State appealed the decision to the U.S. Supreme Court. The Court concluded that the medical fact-finding process was consistent with due process guarantees. The Court considered whether Georgia’s procedures for voluntarily commitment of minors to state mental hospitals violated the children’s Fourteenth Amendment due process rights. The state statute provided that for the voluntary commitment of a child there must be an application from the child’s parent or guardian. The statute permitted any child who had been voluntarily committed for more than five days to be discharged at the request of his or her guardian. Additionally, it required the hospital superintendent to re-evaluate patients who were voluntarily committed and release them if they no longer need to be hospitalized. The Court concluded that Georgia’s practice did satisfy due process requirements. It noted that children have a liberty interest in not being unnecessarily confined and an interest in not being erroneously labeled mentally ill. The Court, however, found that the law sufficiently protected the children’s interests. Parents did not have absolute discretion to have their child committed. Furthermore, the medical fact-finders who admitted children had the authority to refuse to admit any patients, and they periodically reviewed continued commitment. The Court held that Georgia’s statutory and administrative procedure for the voluntary commitment of children was not unconstitutional.

§ 11.3 Constitutional Rights of Putative Fathers of Children Born out of Wedlock § 11.3.1 Stanley v. Illinois Stanley v. Illinois197 established rights for fathers whose children were born out of wedlock. The Illinois statute provided that children of unmarried fathers, upon the death of the mother, were declared dependents without any hearing on parental fitness and without proof of neglect,

194 Id. at 647-648.

195 Id. at 648.

196 442 U.S. 584 (1979).

197 405 U.S. 645 (1972). 121 even though a hearing on parental fitness and proof of neglect were required before the state assumed custody of children of married or divorced parents and unmarried mothers. With respect to fathers of children born out of wedlock, there was an irrebuttable presumption of unfitness. The facts of this case are particularly compelling because the father and mother had lived together intermittently over 18 years, during which time their three children were born. Upon the mother’s death, the state filed a dependency action, and the children were placed with court- appointed guardians. Nothing in the record indicated that the father was unfit or neglectful of his children in any way. The state argued that most fathers of children born out of wedlock are unfit and that the statutory scheme appropriately served the needs of most children. The Supreme Court rejected this argument and found that parental unfitness must be established on the basis of individualized proof. The Court stated that “the interest of a parent in the companionship, care, custody, and management of his or her children ‘come(s) to this Court with a momentum for respect lacking when appeal is made to liberties which derive merely from shifting economic arrangements.’”198 The Court found it irrelevant that the father could have applied for adoption or for custody and control of his children, especially in light of the fact that he would not be afforded any priority and would bear the burden of proof that he should be permitted to serve as the children’s guardian or adoptive parent. The Court concluded that the state’s practice violated the Equal Protection Clause because parents are entitled to a hearing on their fitness before their children are removed. The Court noted that “[p]rocedure by presumption is always cheaper and easier than individualized determination. But when, as here, the procedure forecloses the determinative issues of competence and care, when it explicitly disdains present realities in deference to past formalities, it needlessly risks running roughshod over the important interests of both parent and child. It therefore cannot stand.”199 The Supreme Court held that under the Due Process Clause of the Fourteenth Amendment, all parents, including fathers of children born out of wedlock, are constitutionally entitled to a hearing on fitness before their children are removed from their custody in dependency proceedings. § 11.3.2 Quilloin v. Walcott In Quilloin v. Walcott,200 the U.S. Supreme Court considered whether the state of Georgia could constitutionally deny an unwed father the authority to object to the adoption of his child. The case involved a stepparent adoption of a child born out of wedlock, over the objection of the birth father. The child had lived with his mother since birth, and had never lived with his biological father. When the child was approximately 3 years old, his mother married another man. When the child was 11 years old, his mother consented to the child’s adoption by her husband, and he filed an adoption petition. The Georgia statute provided that only the mother’s consent was required for the adoption of a child born out of wedlock. The biological father, however, could acquire veto authority over the adoption if he had legitimated the child. A child born in wedlock could not be adopted without the consent of each living parent who had not voluntarily surrendered rights of the child or been adjudicated unfit. The father in this case had not legitimated the child prior to the filing of the adoption petition. Using the “best interests of

198 Id. at 651.

199 Id. at 656-657 (footnote omitted).

200 434 U.S. 246 (1978). 122 the child” standard, the trial court granted the stepparent adoption over the father’s objection and denied the biological father’s petition for legitimization, in which he sought visitation rights but not custody. The trial court did not find the father to be an unfit parent. The court did find that, although the child had never been abandoned or deprived, the father had provided support only on an irregular basis. The Supreme Court limited the constitutional rights of fathers of children born out of wedlock to those who had evidenced a substantial interest in their children’s welfare. The Court held that under the circumstances of the case, the father’s substantive rights were not violated by application of a “best interests of the child” standard.201 The biological father had never sought custody. For equal protection purposes, the Court found that the rights of a father who was never married to the mother are distinguishable from those of a separated or divorced father. The state, therefore, could permissibly give such a father less veto authority than it provides to a married father. § 11.3.3 Caban v. Mohammed In Caban v. Mohammed,202 the Supreme Court struck down as violative of equal protection a statute requiring the consent to adoption of the mother, but not the father, of a child born out of wedlock. This case involved children born out of wedlock whose mother subsequently married and had the stepfather adopt the children over the birth father’s objection. The biological father in this case was more involved in the children’s lives than the father in Quilloin. The children’s biological father was married to someone else, but he lived with their mother and held himself out as married to her for several years. During that time two children were born. He was named on the birth certificates and contributed to the children’s support. After the parents separated, the mother took the children and married another man. During the next two years the father maintained contact with the children. When the children were four and six years old, their mother and her husband filed for a stepparent adoption. The birth father cross-petitioned for adoption. The surrogate court granted the stepparent adoption over the father’s objection. The New York statutory and case law required the mother’s consent for the adoption of children born out of wedlock but did not require the father’s consent, even when his parental relationship was substantial. The father did have a right to notice and the opportunity to be heard, but he could prevent the termination of his parental rights only by showing that adoption was not in the best interests of the child. The Supreme Court noted that this case demonstrated that an unwed father may have a relationship with his children fully comparable to that of the mother. The Court addressed the issue it had reserved in Quilloin and held that the New York statute unconstitutionally distinguished unwed parents according to their gender. The Court also found that the distinction did not bear a substantial relation to the state’s interest in providing adoptive homes for illegitimate children. Therefore, the statute was unconstitutional under the Equal Protection Clause of the Fourteenth Amendment. § 11.3.4 Lehr v. Robertson Lehr v. Robertson203 involved a statutory scheme which allowed fathers of children born out of wedlock to acquire legal rights to object to adoption comparable to those of mothers by 201 Id. at 254.

202 441 U.S. 380 (1979). 123 signing up on a putative father’s registry. The father had lived with the mother prior to the child’s birth and visited her in the hospital when the baby was born. His name, however, did not appear on the birth certificate. He did not live with the mother or child after the child’s birth, never provided them with any financial support, never offered to marry the mother, and never registered on the state’s putative father registry. The mother married another man eight months after the child’s birth, and he filed a stepparent adoption petition when the child was two years old. The father was not given or entitled to notice of the adoption because he had not registered on the putative father’s registry. The father learned of the adoption proceeding when he filed a paternity action and sought visitation. The Court noted that equal protection did not prevent a state from according parents separate legal rights when one parent had a continuous relationship with the child and the other parent had never established a relationship with the child. The Supreme Court held that the New York statute did not violate the father’s Fourteenth Amendment due process or equal protection rights by granting an adoption without notice to or consent by him. The statutory scheme provided him ample opportunity to put himself in a position of being entitled to receive notice, which he did not use. Justice Stevens summarized the varying constitutional protections given to fathers of various degrees of involvement with their children born out of wedlock: The difference between the developed parent-child relationship that was implicated in Stanley and Caban, and the potential relationship involved in Quilloin and this case, is both clear and significant. When an unwed father demonstrates a full commitment to the responsibilities of parenthood by ‘[coming] forward to participate in the rearing of his child,” Caban, 441 U.S., at 392, his interest in personal contact with his child acquires substantial protection under the Due Process Clause. At that point it may be said that he “[acts] as a father toward his children.” Id., at 389, n. 7. But the mere existence of a biological link does not merit equivalent constitutional protection. . . . The significance of the biological connection is that it offers the natural father an opportunity that no other male possesses to develop a relationship with his offspring. If he grasps that opportunity and accepts some measure of responsibility for the child’s future, he may enjoy the blessings of the parent-child relationship and make uniquely valuable contributions to the child’s development. If he fails to do so, the Federal Constitution will not automatically compel a state to listen to his opinion of where the child’s best interests lie. . . . In this case, we are not assessing the constitutional adequacy of New York’s procedures for terminating a developed relationship. Appellant has never had any significant custodial, personal, or financial relationship with Jessica, and he did not seek to establish a legal tie until after she was two years old. We are concerned only with whether New York has adequately protected his opportunity to form such a relationship.204 § 11.3.5 Michael H. et al. v. Gerald D. Michael H. et al. v. Gerald D.205 addressed the constitutionality of Section 621 of the

204 Id. at 261-263 (citations omitted).

205 491 U.S. 110 (1989). 124 California Evidence Code, which provided that “the issue of a wife cohabitating with her husband, who is not impotent or sterile, is conclusively presumed to be a child of the marriage.”206 Paternity tests established that Michael H. was the biological father of Victoria D. Victoria’s mother had lived with Michael H. in an on-again, off-again manner and asserted that he was the child’s father. At the time of Victoria’s birth, she was married to Gerald D., who was named as Victoria’s father on her birth certificate. Eventually, Victoria and her mother went to live with Gerald D., and Michael H. filed an action to establish his paternity and visitation rights. The California courts denied his request, finding that Section 621 of the California Evidence Code prevented a putative father from establishing paternity and California law denied visitation requests by a putative father against the wishes of the mother. Michael H. asserted on appeal to the U.S. Supreme Court that Section 621 violated his substantive and procedural due process rights. Michael H. first contended that procedural due process prevented the state from terminating his relationship with his child without permitting him an opportunity to prove his paternity in an evidentiary hearing. The Supreme Court rejected this argument. It found that the California legislature devised the statute to prohibit paternity inquiries when a child was born to a married couple to protect family privacy and integrity. Next, Michael H. argued that because he had established a relationship with Victoria, as a matter of substantive due process the state’s interest in protecting marriage was insufficient to terminate his relationship with his daughter. The Court also rejected this argument, and concluded that in the history of the United States the relationship between a putative father and his child has never been constitutionally protected. Finally, the Court considered whether Victoria had a liberty interest in maintaining a relationship with Michael H. and Gerald D. The Court rejected this claim and concluded that there is no historical support to recognize multiple fathers.

§ 11.4 Termination of Parental Rights § 11.4.1 Lassiter v. Dept. of Social Services In Lassiter v. Dept. of Social Services 207 the Supreme Court held 5-4 that states are not constitutionally required to provide appointed counsel for indigent parents in all termination of parental rights cases. In the present case, the child was removed from the mother’s custody as an infant based on her failure to provide proper medical care. The mother was subsequently convicted of second degree murder and sentenced to 25 to 40 years incarceration. Three years after the child’s initial removal, the county department of social services filed a petition to terminate the mother’s parental rights. The petition was based on her lack of contact with the child, and the fact that she left the child in foster care without showing substantial progress, a positive response to the agency’s efforts, or constructive planning for the child’s future. The mother had retained counsel in order to seek invalidation of the criminal conviction, but she had failed to mention the termination proceeding to him. The agency arranged to have the mother transported to the termination hearing. The trial court found that the mother’s failure to have counsel was without just cause. Further, she did not allege that she was indigent. After the trial court held that she was not entitled to court appointed counsel, Ms. Lassiter represented herself at the hearing.

206 Id. at 117.

207 452 U.S. 18 (1981). 125 In this case, the Court emphasized, there were no allegations of abuse or neglect that might result in criminal prosecution, no expert witnesses were called, nor were there any substantively or procedurally difficult points of law. Additionally, the mother had previously failed to attend a custody hearing, she hadn’t bothered to mention the case to her criminal attorney, and she had not evidenced much interest in the child after his removal. It did not appear that the presence of counsel would have made a determinative difference. While the Court held that the mother in this case was not constitutionally entitled to appointed counsel under the circumstances, it noted that there may be termination of parental rights cases in which the nature of the allegations and the evidence to be presented give rise to a due process right to the appointment of counsel. The Court noted that “33 States and the District of Columbia provide statutorily for the appointment of counsel in termination cases. The Court's opinion today in no way implies that the standards increasingly urged by informed public opinion and now widely followed by the States are other than enlightened and wise.”208 Moreover, the Court encouraged state courts to appoint counsel in termination cases, stating that a “wise public policy . . . may require that higher standards be adopted than those minimally tolerable under the Constitution. Informed opinion has clearly come to hold that an indigent parent is entitled to the assistance of appointed counsel not only in parental termination proceedings, but in dependency and neglect proceedings as well.”209 Despite the Court’s holding in Lassiter, a number of state appellate courts have held that their state constitution demands that a parent alleged to be abusive or neglectful has the right to the appointment of counsel.210 § 11.4.2 Santosky v. Kramer A 5-4 majority of the Supreme Court held in Santosky v. Kramer 211 that under the due process clause of the Fourteenth Amendment, in state-initiated termination of parental rights cases, the state must prove its case by at least clear and convincing evidence. The Court ruled, therefore, that New York’s statutory scheme, which required only proof by a preponderance of the evidence, was unconstitutional. The Court discussed a parent’s fundamental liberty interest in the care, custody, and management of his or her children. It noted that even those who have lost custody of their children or who are not model parents still retain an interest in maintaining their parental rights. The Court concluded that the state must provide parents with fundamentally fair procedures. The Court found that in termination of parental rights proceedings, “the private interest affected is commanding; the risk of error from using a preponderance standard is substantial; and the countervailing governmental interest favoring that standard is comparatively slight. Evaluation

208 Id. at 34.

209 Id. at 33-34.

210 See, e.g., In the Interest of D.B. and D.S., 385 So.2d 83 (Fla. 1980); Reist v. Bay County Circuit Judge, 396 Mich. 326, 241 N.W.2d 55 (Mich. 1976); Danforth v. State Dep’t of Health and Welfare, 303 A.2d 794 (1973). Some states also require appointment of counsel for parents by statute. See, e.g., Ariz Rev Stat Ann §8-2215(B); 705 Ill Comp Stat Ann §405/1-5(1) (19922009); Cal Welf & Inst Code §317 (mandatory if child is in out-of-home placement or agency is requesting out-of-home placement); Va Code §16.1-266(DC) (mandatory where parent or guardian could be subjected to the loss of residual parental rights and responsibilities); Wis Stat Ann §48.23(2).

211 455 U.S. 745 (1982). 126 of the three Eldridge factors compels the conclusion that use of a ‘fair preponderance of the evidence’ standard in such proceedings is inconsistent with due process.”212 The Court found that a clear and convincing standard was necessary to protect a parent’s due process rights. § 11.4.3 M.L.B. v. S.L.J. In M.L.B. v. S.L.J.,213 the Supreme Court held that when an indigent parent appeals the termination of his or her parental rights, the Fourteenth Amendment’s Due Process Clause requires that he or she be provided “a record of sufficient completeness to permit proper appellate consideration of her claims” at public expense.214 M.L.B. was the mother of two children, a boy and a girl. M.L.B.’s ex-husband, S.L.J., and his new wife sought to terminate M.L.B.’s parental rights so that S.L.J.’s new wife could adopt the children. The trial court found that “there had been a ‘substantial erosion of the relationship between the natural mother, [M.L.B.], and the minor children’ which has been caused ‘at least in part by [M.L.B.’s] serious neglect, abuse, prolonged and unreasonable absence or unreasonable failure to visit or communicate with her minor children.’”215 M.L.B. sought to appeal and paid a $100 filing fee. M.L.B. was unable to pay the additional $3253.36 fee for the production of the record necessary to prosecute the appeal. After examining a number of precedents in both the criminal and civil spheres regarding the appointment of counsel or the provision of transcripts at public expense and relating to the termination of parental rights, the court framed the precise question to be answered: “Does the Fourteenth Amendment require Mississippi to accord M.L.B. access to an appeal—available but for her inability to advance required costs—before she is forever branded unfit for affiliation with her children?”216 The majority observed that “termination decrees ‘work a unique kind of deprivation.’ . . . In contrast to matters modifiable at the parties’ will or based on changed circumstances, termination adjudications involve the awesome authority of the State ‘to destroy permanently all legal recognition of the parental relationship.’. . . Our Lassiter and Santosky decisions, recognizing that parental termination decrees are among the most severe forms of state action . . . have not served as precedent in other areas. . . . We are therefore satisfied that the label ‘civil’ should not entice us to leave undisturbed the Mississippi courts’ disposition of this case.”217 Because of the importance of the rights at stake for the parent, and the relatively minimal financial burden placed on the state if it is compelled to provide a court record at public expense, the court held that the State is required to provide an indigent parent enough of the record to permit appellate consideration of his or her case.

212 Id. at 758.

213 519 U.S. 102 (1996).

214 Id. at 106 (internal quotation marks omitted).

215 Id. at 108 (citations omitted).

216 Id. at 119.

217 Id. at 127. 127 § 11.5 Foster Parent Relationships § 11.5.1 Smith v. Org. of Foster Families for Equality & Reform, et al. Smith v. Org. of Foster Families for Equality & Reform, et al.218 was brought by foster parents and a foster parents’ organization seeking declaratory and injunctive relief challenging procedures for removal of foster children from their foster homes. The applicable New York statutes and New York City regulations provided for notice and an opportunity to be heard before a foster child could be removed except in an emergency. The foster parents had the right to be advised of the reasons for the removal, to appear with counsel, and to submit reasons why the child should not be removed. If the child was being transferred to another foster home, but not if the child was being returned to his parents, the foster parents could also request a full trial- type hearing before the child’s removal. Finally, if the child had been in foster care longer than 18 months, the foster parents were made parties to the proceeding and could request review of the child’s status by the family court, which could result in a court order that the agency leave the child with the foster parents. The foster parents contended that when a child has lived in a foster home for a year or more, the foster family becomes the true “psychological family” of the child, and the foster family acquires a Fourteenth Amendment liberty interest in maintaining that family unit, which requires a higher level of due process before a foster child is removed.219 The trial court did not recognize such a right, and instead granted relief based on an independent right of the foster child to be heard before being “condemned to suffer grievous loss,” namely, disruption of a stable foster placement.220 On appeal, the state alleged that the trial court’s analysis was not constitutionally sound. The Supreme Court pointed out a significant constitutional difference between foster family relationships and natural family relationships, even when the child has been with the foster family for a long time: “unlike the earlier cases recognizing a right to family privacy, the State here seeks to interfere, not with a relationship having its origins entirely apart from the power of the State, but rather with a foster family which has its source in state law and contractual arrangements. . . . In this case, the limited recognition accorded to the foster family by the New York statutes and the contracts executed by the foster parents argue against any but the most limited constitutional “liberty” in the foster family.”221 The Court also pointed out that while “ordinarily procedural protection may be afforded to a liberty interest of one person without derogating from the substantive liberty of another,” in this case, the foster parents’ interest is in derogation of the interests of “the natural parent of a foster child in voluntary placement [who] has an absolute right to the return of his child in the absence of a court order obtainable only upon compliance with rigorous substantive and procedural standards, which reflect the constitutional protection accorded the natural family.”222 Therefore, the Court concluded that

218 431 U.S. 816 (1977).

219 Id. at 839.

220 Id. at 840.

221 Id. at 845.

222 Id. at 846. 128 “[w]hatever liberty interest might otherwise exist in the foster family as an institution, that interest must be substantially attenuated where the proposed removal from the foster family is to return the child to his natural parents.”223 The Court did not need to decide the constitutional limits of the foster parents’ interest, however, because it found that the procedures offered by New York were not constitutionally defective.224 The Supreme Court rejected the argument that the foster child’s interest was impaired by the lack of a right to request a hearing, stating, “if [the foster parents] do not request a hearing, it is difficult to see what right or interest of the foster child is protected by holding a hearing to determine whether removal would unduly impair his emotional attachments to a foster parent who does not care enough about the child to contest the removal.”225 The Court then considered the private interests of the foster families, the risk of erroneous deprivation of that interest, and the state’s interest. The Court reversed the lower court’s decision. It concluded that foster parents’ rights were sufficiently protected by the procedure provided, noting that the case concerned “issues of unusual delicacy, in an area where professional judgments regarding desirable procedures are constantly and rapidly changing. In such a context, restraint is appropriate on the part of courts called upon to adjudicate whether a particular procedural scheme is adequate under the Constitution.”226

§ 11.6 State Agency Duties § 11.6.1 DeShaney v. Winnebago County Dept. of Social Services In DeShaney v. Winnebago County Dept. of Social Services,227 the Court concluded that the state did not have a duty to act to protect a child that was not in the state’s custody. This case involved a civil rights action under 42 U.S.C. §1983, filed on behalf of a severely abused child against social workers and local officials who had received complaints that he was being abused by his father and had reason to believe that he was abused. They initially removed the child for three days to evaluate him in a hospital, but he was returned to his father’s care. The department provided voluntary services. The juvenile court dismissed the child protection case and returned the child to the custody of his father. The caseworker did not take action after a report from an emergency room physician, but made monthly visits to the child’s home. During this time, she observed a number of suspicious injuries on the child’s head and noticed that the father had not followed through with some of his voluntary agreements. She noted in the record these problems and her suspicion that the child was being abused but took no action to protect the child. The caseworker responded to the home two additional times following another report from the emergency room and was told that the child was too ill to see her. She took no further action. Finally, the child was beaten so severely that he suffered brain damage so severe that he is

223 Id. at 846-847.

224 Id. at 847.

225 Id. at 850 (footnote omitted).

226 Id. at 855-856.

227 489 U.S. 189 (1989). 129 expected to spend the rest of his life confined to an institution for the profoundly retarded. The Supreme Court considered whether the child’s due process rights were violated by Child Protective Services when they failed to protect him from the abuse. The Court concluded that nothing in the language of the due process clause required the state to protect citizens from private actors. The Court stated that there is no “affirmative right to governmental aid, even where such aid may be necessary to secure life, liberty, or property interests of which the government itself may not deprive the individual.”228 The Court additionally concluded that if “the Due Process Clause does not require the State to provide its citizens with particular protective services, it follows that the State cannot be held liable under the Clause for injuries that could have been averted had it chosen to provide them.”229 The Supreme Court rejected the argument that a “special relationship” existed between the agency and the child in this case.230 The petitioner’s argued the relationship existed because the State knew that the child faced a special danger of abuse at his father’s hands, and specifically proclaimed, by word and by deed, its intention to protect him against that danger, thereby creating a duty to act reasonably. The Court found that such a duty would arise only where “the State by the affirmative exercise of its power so restrains an individual’s liberty that it renders him unable to care for himself, and at the same time fails to provide for his basic human needs . . . . The affirmative duty to protect arises not from the State’s knowledge of the individual’s predicament or from its expressions of intent to help him, but from the limitation which it has imposed on his freedom to act on his own behalf.”231 The Court reasoned that the Fourteenth Amendment does not require a state agency to protect citizens from private conduct that is not attributable to the agency’s employees. It concluded that because the child was not in the state’s custody, there was no duty to act. § 11.6.2 Youngberg v. Romeo The Court held, in Youngberg v. Romeo,232 that a mentally retarded man who was involuntarily confined in a state institution had constitutionally protected liberty interests under the due process clause of the Fourteenth Amendment to reasonably safe conditions of confinement, freedom from unreasonable bodily restraints, and such minimally adequate training as reasonably might be required by these interests. This case involved a 33-year-old man who had the mental capacity of an 18-month-old child. He was involuntarily committed to a state institution. Shortly after his commitment, he sustained a number of injuries. His mother filed suit on behalf of him against the institution officials under 42 U.S.C. § 1983. She alleged that his rights under the Eighth and Fourteenth Amendments were violated. The Court concluded that when a person is institutionalized and dependent on the state, the state has a duty to provide certain services and care. The Court expanded the State’s responsibilities to include: (1) providing patients with safe conditions; (2) freedom from

228 Id. at 196.

229 Id. at 196 to 197.

230 Id. at 197.

231 Id. at 200.

232 457 U.S. 307 (1982). 130 restraint; and (3) adequately trained employees. The Court stated that the proper test to determine whether the State violated a patient’s rights is to consider whether the State adequately protected those rights and whether the State exercised professional judgment. NOTE: Taken together, DeShaney and Youngberg suggest a rule that while the State has no duty to intervene to protect a child from parental maltreatment, when the State does intervene and removes a child from his or her home, the federal civil rights statutes require that the child not be placed in a home that the state actors know or suspect may be abusive.233 § 11.6.3 Suter v. Artist M. Suter v. Artist M.234 involved an action for injunctive and declaratory relief filed on behalf of children adjudicated dependent. They sought to enforce the state agency’s duty under the Adoption Assistance and Child Welfare Act (Act) and the state plan adopted pursuant to the Act to provide reasonable efforts to maintain an abused or neglected child in his home or return the child to his home from foster care. The Act provided the federal government with the authority to reduce or eliminate payments to a State on finding that the state’s plan did not comply with the Act’s requirements. The Court held that the Act did not create enforceable rights for dependent children. The Court determined that although the Act placed requirements on the States, the only requirement was that the States have a plan approved by the Secretary of Health and Human Services and that the plan called for reasonable efforts. The Court held that there was no private cause of action created under the Act. The Court concluded that “the ‘reasonable efforts’ language does not unambiguously confer an enforceable right upon the Act’s beneficiaries. The term ‘reasonable efforts’ in this context is at least as plausibly read to impose only a rather generalized duty on the State, to be enforced not by private individuals, but by the Secretary in the manner previously discussed.”235 NOTE: Following Suter v. Artist M, the Second Circuit Court of Appeals allowed certification of a class action lawsuit on behalf of children in New York City’s child welfare system.236 The D.C. Circuit Court of Appeals also permitted a class action lawsuit on behalf of foster children in the District of Columbia.237 The Supreme Court’s decision in Suter v. Artist M. was limited by statute in 1994 when Congress amended the Social Security Act.238 The amendments did not, however, alter the Court’s holding in Suter that Section 671(a)(15) is not enforceable in a private right of action.239

233 See, e.g., K.H. ex rel Murphy v. Morgan, 914 F.2d 846 (7th Cir. 1990); Lewis v. Anderson, 308 F.3d 768 (7th Cir. 2002), cert. den., sub nom Lewis v. Stolle, 538 U.S. 908, 123 S.Ct. 1500 (2003).

234 503 U.S. 347 (1992).

235 Suter v. Artist M., 503 U.S. 345, 363 (1992).

236 See Marisol A. v. Giuliani, 126 F.3d 372 (2d Cir. 1997).

237 See LaShawn A. by Moore v. Kelly, 990 F.2d 1319 (D.C. Cir. 1993).

238 42 U.S.C. §§ 1320a-2, 1320a-10.

239 Dajour B., et al. v. City of New York, et al., 00 Civ. 2044 (JGK), 2001 WL 830674 (S.D.N.Y. July 23, 2001). 131 § 11.7 Access to Child Protective Service Records § 11.7.1 Pennsylvania v. Ritchie In Pennsylvania v. Ritchie,240 the Supreme Court considered a defendant’s right to access the records of child protective services regarding the alleged victim. The defendant was charged with various counts of sexual assault against his daughter. During pretrial discovery he requested access to all of the Children and Youth Services (CYS) records related to the charges. The defendant argued that he was entitled to access to the records because they might contain the names of witness and other evidence. The trial judge did not examine the entire record, but refused to order disclosure. The defendant was convicted. On appeal, the Pennsylvania Supreme Court held that denying the defendant access to CYS records violated the Confrontation and Compulsory Process Clauses and the Sixth Amendment. The U.S. Supreme Court addressed the defendant’s due process rights. The Court noted that the Compulsory process clause required the government to assist in getting witnesses to attend trial. It does not guarantee the right to favorable witnesses’ identities, nor does it provide additional protections than the due process clause. Under due process principles, the government must share material evidence with the accused. In this case, the Pennsylvania statute provided that CYS records must be kept confidential unless there is a court order requiring disclosure. Therefore, the Court concluded that the accused is entitled to ask the trial court to review a CYS file and determine whether it has material information that should be disclosed.

§ 11.8 Social Security Benefits for Children in Foster Care § 9.8.1 Washington State Dept. of Social and Health Services Guardianship Estate of Keffeler Washington State Dept. of Social and Health Services v. Guardianship Estate of Keffeler241 was a class action on behalf of children in foster care who were receiving Social Security benefits that were being paid to the state as the representative payee. The children alleged that the state agency violated federal law by reimbursing itself for foster care expenditures from their Social Security benefits. The Supreme Court, in an opinion by Justice Souter, stated that “[a]lthough it is true that the State could not directly compel the beneficiary or any other representative payee to pay Social Security benefits over to the State, that fact does not render the appointment of a self-reimbursing representative payee at odds with the Commissioner’s mandate to find that a beneficiary’s ‘interest . . . would be served’ by the appointment.” 242 The Court held that it was permissible for the agency to reimburse itself for the current costs of maintaining the children in foster care.

240 480 U.S. 39 (1987).

241 537 U.S. 371 (2003).

242 Id. at 389. 132 § 11.09 Parent’s Right against Self-incrimination in Child Protection Cases §11.09.1 Baltimore City Dept. of Social Services v. Bouknight Baltimore City Dept. of Social Services v. Bouknight243 involved a juvenile court order for a mother to produce her child, who was the subject of a child welfare proceeding. The child was initially removed from the mother’s home as an infant based on physical abuse, including fractures. After being adjudicated a child in need of services, the child was returned to his mother, subject to the court’s ongoing protective supervision. Eight months later, the mother had failed to comply with nearly all of the conditions of the protective order. Both the child welfare agency and law enforcement were unable to locate the child. Therefore, the court ordered the child to be removed again. However, the mother refused to produce the child or reveal where he could be found, invoking her Fifth Amendment privilege against self-incrimination. She believed that production of the child would amount to an admission of her physical control over the child. The court and agency were concerned that the child might be dead. The juvenile court ordered the mother jailed for contempt until she complied with the order by producing the child or revealing his exact whereabouts. The mother appealed the juvenile court’s order. The court of appeals vacated the juvenile court contempt order and found it was unconstitutional because it compelled testimony or production that could be incriminating. The Supreme Court granted certiorari and reversed the court of appeals. The Supreme Court held that a mother who is the custodian of a child pursuant to a court order may not invoke the Fifth Amendment privilege against self-incrimination to resist an order of the juvenile court to produce the child. The court cited previous cases that established that the Fifth Amendment cannot be invoked to resist cooperation with the state when the state’s purpose does not involve enforcing criminal laws. The court compared the juvenile court’s order to government orders compelling individuals to produce records. It concluded that the mother could not invoke the privilege against self-incrimination because the child was a ward of the state, she accepted custody of him subject to conditions set by the juvenile court, and the state had concerns about the child’s well-being. The court noted that the foregoing circumstances lessened the parent’s right to invoke the Fifth Amendment privilege.

§ 11.10 Prenatal Drug Testing; Criminal vs. Civil Child Protection Investigations §11.10.1 Ferguson v. City of Charleston

243 493 U.S. 549 (1990). 133 Ferguson v. City of Charleston244involved a city’s response to the perceived problem of pregnant women receiving prenatal care who were using cocaine, causing their babies to be born with cocaine in their systems. The local public hospital agreed to cooperate with the City of Charleston and law enforcement by performing urinalysis testing on pregnant women suspected of drug use, the results of which would be used as evidence against the women. The policy required that a chain of custody be followed when obtaining and testing patients' urine samples and educated hospital personnel in police procedures and criteria for arresting women who tested positive for drugs. A group of mothers sued to overturn the policy, arguing that the warrantless and nonconsensual drug tests conducted for criminal investigatory purposes were unconstitutional searches. The Supreme Court agreed and held that the state hospital's performance of a diagnostic test to obtain evidence of a patient's criminal conduct for law enforcement purposes is an unreasonable search if the patient has not consented to the procedure and, therefore, it violated the Fourth Amendment. The Court noted that while “the ultimate goal of the program may well have been to get the women in question into substance abuse treatment and off of drugs, the immediate objective of the searches was to generate evidence for law enforcement purposes in order to reach that goal.” The primary purpose of the policy was to use the threat of arrest and prosecution to force women into treatment. The Court stated that “[w]hile state hospital employees, like other citizens, may have a duty to provide the police with evidence of criminal conduct that they inadvertently acquire in the course of routine treatment, when they undertake to obtain such evidence from their patients for the specific purpose of incriminating those patients, they have a special obligation to make sure that the patients are fully informed about their constitutional rights, as standards of knowing waiver require.”245 ELECTRONIC RESOURCE 1e: COLORADO DEPARTMENT OF HUMAN SERVICES REGULATIONS

COLORADO DEPARTMENT OF HUMAN SERVICES

DIVISION OF CHILD WELFARE

There are three types of Rules and Regulations that the Colorado Department of Human Services: Division of Child Welfare operates under:

(1) Policy-based Agency Letters (“Agency Letters”) The Department of Human Services provides Agency Letters for official communication of policy. Agency letters are primarily directed for the use of county departments of social services.

244 532 U.S. 82-83 (2001) (footnote omitted; emphasis in the original).

245 Id. at 84-85 (footnote omitted). 134 (2) CDep’t of Human Services Regulations as listed in Volume VII (“CDep’t of Human Services Regulations”) Online versions of these regulations are the most current versions available; however, these are not the official publications. For official publications of these and all State of Colorado regulations, please consult the Code of Colorado Regulations (12 CCR 2509) or contact Weil Publishing. The phone number is 1- 800-877-9345 or the Secretary of State, information center at 303-894-2200, Ext. 6418.

(3) Statutes of Colorado’s Children’s Code (“CC Code”) Colorado Revised Statutes are made available for public use by the Committee on Legal Services of the Colorado General Assembly through a contractual arrangement with LexisNexis Group which prepares and maintains the website. The statutes are copyrighted by the State of Colorado.

While the Policy-based Agency Letters and Regulations, Volume VII are not focused on in the training or available in the manual, the Colorado Children’s Code is a substantial part of the training and comprises a large section of the manual.

This part of the handout will provide you with the tools and information necessary to access the Policy-based Agency Letters, Regulations- Volume VII, and Colorado’s Children Code online.

135 The Colorado Department of Human Services: Division of Child Welfare, Rules and Regulations can be accessed online at: http://www.cdhs.state.co.us/childwelfare/RulesandRegulationsPoliciesandProcedures.htm

To access the Policy-based Agency Letters, click on “Agency Letters” (in blue font).

136 You will arrive at this website listing the categories of Agency Letters. Child Welfare is abbreviated as “CW.” Click on “CW” to access the letters.

137 You will then see the letters listed, with the most recent at the top. As you will see, letters are archived on this site back to January of 1998. We have supplied you, in this manual, with the lists of letters from 2005 to present. To access them, go to the website (as shown above) and click on the letter you wish to view by clicking on its title (in blue font). For example, if you wished to view “New Rules Regarding Allowing Families to Affiliate” from 02/25/2010, you would click on its title and be directed to an image of the letter.

138 You will then be able to view the Agency Letter:

139 To access CDep’t of Human Services Regulations, you will return to the Colorado Department of Human Services- Division of Child Welfare, Rules and Regulations website: http://www.cdhs.state.co.us/childwelfare/RulesandRegulationsPoliciesandProcedures.htm

Then, you will click on “Volume VII” (in blue font) to access the Regulations.

140 You will arrive a website which lists the contents of “Volume VII.” The regulations which address child welfare are listed in part 7, “Social Services.” To access the regulations, click on “Social Services [includes child welfare and licensing rules].”

You will then see a screen listing the different sections addressing Child Welfare. To view a specific regulation, such as “Child Welfare Services,” click on the title of the sub-volume.

141 You then be able to read the DCHS Regulation that you have selected. The “Child Welfare Services” Regulation (12 CCR 2509-4) is shown below.

142 ELECTRONIC RESOURCE 1f: REGULATORY ENVIRONMENT OF SERVICE PROVIDERS

REGULATORY ENVIRONMENT OF SERVICE PROVIDERS

Service providers operate under the following Federal and Colorado State Regulations:

Federal United States Code 42 USC 5106 - Grants for States for Child Abuse and Neglect Prevention and Treatment Programs The Secretary may make grants to, and enter into contracts with public or private agencies or organizations for programs and projects for the following purposes: training programs, triage procedures, mutual support programs, kinship care, and linkages between child protective service agencies and public health, mental health, and developmental disabilities agencies. Discretionary grants are also available for programs in hospitals. All projects will be evaluated for their effectiveness.

42 USC 671 - State Plan for Foster Care and Adoption Assistance In order for a State to be eligible for payments under this part, it shall have a plan approved by the Secretary which meets the multiple criteria listed.

Code of Federal Regulations Title 42 – Public Health Title 45 – Public Welfare

Colorado Colo. Rev. Stat. § 19-1-303 - General provisions - delinquency and dependency and neglect cases - exchange of information - civil penalty

143 The Judicial Department or any similar agency that performs services regarding juvenile delinquency and neglect cases may exchange information, to the extent necessary, with the Judicial Department or any similar agency or individual for the purpose of investigation or case management, i.e. the acquisition, provision, oversight, or referral of services and support. Colo. Rev. Stat. Ann. § 19-1-307 - Dependency and neglect records and information - access - fee - rules - records and reports fund - misuse of information - penalty. Reports of child abuse or neglect and the name and address of any child, family, or informant or any other identifying information contained in such reports shall be confidential and shall not be public information. With few exceptions, disclosure of the name and address of the child and family and other identifying information involved in such reports shall be permitted only when authorized by a court for a good causes.

In “Balancing Accountability and Confidentiality,” a sourcebook produced by Every Child Matters and the Legacy Family Institute, there is a great discussion of information exchange (confidentiality) regulations. A helpful excerpt has also been provided as a part of this manual.

144 ELECTRONIC RESOURCE 1g: CHIEF JUSTICE DIRECTIVES

CHIEF JUSTICE DIRECTIVES

Colorado Chief Justice Directives are an expression of judicial branch policy and are given full force and effect in matters of court administration. Hodges v. People, 158 P.3d 922, 926 (Colo. 2007); Office of the State Court Adm'r v. Background Info. Servs., Inc., 994 P.2d 420, 431 (Colo. 1999).

Two of the Chief Justice Directives that are most applicable to Child Welfare Law are 04-05 and 04-06. The topics that are discussed within each of the Directives are listed below. You can access the Directives online at: http://www.courts.state.co.us/Courts/Supreme_Court/Directives/Index.cfm

04-05

Appointment and Payment Procedures for Court Appointed Counsel Pursuant to Titles 12, 13, 14, 15, 19 (Dependency and Neglect only), 22, 25, 27, and Guardians Ad Litem, Child and Family Investigators and Court Visitors

(1) Appointment and Payment Procedures for CAC, GAL's, CFI's & CV's (2) Child and Family Investigators non-attorney; guidelines for appointment and payment (3) Complaints, performance of state paid counsel, GALs for an adult non-attorney representative (4) Counsel for children and indigent persons, appointment of (5) Court Appointed Counsel System (CACS) (6) Court appointees, procedures for payment of fees and expenses (7) Court visitor, order appointing under title 15, 25 or 27 (8) Fees and expenses, CAC, guardian ad litem (adults); Non-attorney child and family investigators; court visitors (9) Fees for court visitors (10) Guardian ad litem, duties of judges and magistrates

04-06

Court Appointments through the Office of the Child’s Representative

145 (1) Child's Representative through OCR (2) Complaints, performance of state paid GAL for minor, child’s representative, attorney representative (3) Counsel for children and indigent persons, appointment of (4) Court Appointments Through the Office of the Child's Representative (5) Fiscal Standards - Office of the Child's Representative (6) Guardian ad litem, duties; Office of the Child's Representative (7) Guardian ad litem, guidelines for appointment and payment by the Office of the Child's Representative (8) Indigency, determination required for state payment of guardian ad litem; Office of the Child's Representative (9) Office of the Child's Representative; guidelines for appointment and payment of Guardian ad Litems (10) Payment, guardian ad litem for (child); Office of the Child's Representative (11) Payments, costs incurred by office of child’s representative (12) Sanctions, guardians ad litem (for minor); Office of the Child’s Representative (13)Special advocate attorney, guidelines for appointment and payment (14) Title 14, 19 or 22 C.R.S., guardians ad litem for a minor; Office of the Child's Representative Title 25 or 27 C.R.S., guardians ad litem for a minor; Office of the Child’s Representatives

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