Spotlight Issue

Spotlight Issue

Explore important issues affecting the juvenile court system through these Spotlight Issues authored by CIP Staff and guest writers.

The Intersection of Mental Health and Juvenile Justice Systems—Efforts to Redefine Appropriate Intervention

The Intersection of Mental Health and Juvenile Justice Systems—Efforts to Redefine Appropriate Intervention
The Intersection of Mental Health and Juvenile Justice Systems—Efforts to Redefine Appropriate Intervention

Katie Hunsberger | 3/1/15

In recent years there has been continued criticism of the efforts to address the needs of vulnerable children and families, particularly within the juvenile justice system.   Commentators have previously noted, “Juvenile justice probably suffers the most glaring gaps between best practice and common practice, between what we know works and what our public systems most often do on our behalf.”   Although there have been significant efforts on the federal, state, and local levels to effect positive change, there continues to be significant policy and program challenges, particularly where the juvenile justice and mental health systems intersect.  In order to design and implement improved policies and programs, there must be a better understanding of the mental health issues among the juvenile population.   

Previous research looking at the mental health issues among justice-involved youth have resulted in widely varied estimates of prevalence.  Some reasons for the lack of consistent results related to the use of inconsistent definitions, poorly designed research studies, and the use of non-standardized measures.  However, the advancement of standardized screening and improved assessment instruments have led to more consistent mental health diagnosis prevalence estimates ranging in 65-70% of those youth in residential juvenile justice facilities to approximately 50% of those in non-residential settings (i.e., probation intake).  In 2006, the National Center for Mental Health and Juvenile Justice (NCMHJJ) in collaboration with the Council of Juvenile Correctional Administrators (CJCA) with the support of the Office of Juvenile Justice and Delinquency Prevention (OCJJDP), conducted one of the largest mental health studies to date involving over 1400 youth involved with the juvenile justice system across three states—Louisiana, Texas, and Washington—and across three types of settings: community-based programs, detention centers and residential facilities.  Females and minorities were oversampled in an effort to increase understanding of these understudied groups.  Over 70% of the youth studied had at least one mental health disorder and almost 61% had a co-occurring mental health disorder and substance use disorder.  More than 60% qualified for three or more mental health disorders.   Disruptive disorders were most common, followed by substance use disorders, anxiety disorders, and mood disorders.  However, even if disruptive disorders, such as conduct disorder, and substance use disorders were removed from the analysis, 45.5% of the youth in this study still had another type of mental health disorder, with anxiety and mood disorders being the most prevalent.   

In addition to the high prevalence rates, other reports, such as by the U.S. Department of Justice have indicated that the juvenile detention and correctional facilities throughout the country have consistently failed to adequately address the mental health needs of youth in their care.   These studies continue to demonstrate that while the awareness of mental health needs among the juvenile justice population has increased, there remains an ongoing significant need for improvements in policy, programs, and interrelated efforts between the mental health system and the juvenile justice system in order to effectively meet the needs of these youth.  Any policies, programs, and facilities that look to address the justice needs of juveniles without also screening for and addressing identified mental health needs is failing the youth that are arguably the most vulnerable and in need of support.      

Based on these types of research findings, the Office of Juvenile Justice and Delinquency Prevention (OJJDP) developed a conceptual and practical framework for juvenile justice and mental health systems to use when developing strategies aimed at improving mental health services for youth involved with the juvenile justice system.  Among others, a few of the key underlying principles include:

  1. Whenever possible and when public safety allows, youth with mental health needs should be diverted into evidence-based mental health treatment in a community setting.
     
  2. If diversion is not possible, youth should be placed in the least restrictive juvenile justice setting possible, with access to evidence-based treatment.
     
  3. Whenever possible, families and/or caregivers should be partners in the development of treatment decisions and planning made for their children. 

Four Cornerstones were identified as areas where the most critical improvements are necessary to enhance delivery of mental health services to youth involved with the juvenile justice system: Collaboration, Identification, Diversion and Treatment.  These four Cornerstones were then applied within the juvenile justice process along seven critical intervention points: initial contact and referral, intake, detention, judicial processing, secure placement, probation supervision, and re-entry.   A full description of this program and all of the components is beyond the scope of this brief article.  For further information, please refer to the Blueprint publications and reports found at the NCMHJJ website.  

Here in Nebraska we have also seen significant efforts at reforming our juvenile justice system.  Following the passage of LB 561 in 2013, the supervision of youth involved with juvenile justice was transferred from the Department of Health and Human Services to the Office of Probation Administration, a division of the Nebraska Judicial Branch.  Similar to the underlying key principles in the NCMHJJ Blueprint, this shift in the Nebraska juvenile justice system also reflects the importance of reducing the number of youth that become wards of the state, are incarcerated, or are place in group homes.  Additionally, there is an emphasis on providing treatment to the youth in their homes and local communities wherever possible, and including the involvement of parents and guardians in that ongoing process.  In Chief Justice Michael G. Heavican’s 2015 State of the Judiciary address,  he recognized the positive progress being made, to include a 1,000 participant reduction in juveniles being made state wards since 2012 and an increase of 45% in mental health service providers across the state.  

One program in particular has garnered the attention in numerous states across the nation and is now being implements in Douglas County in Nebraska.  The Juvenile Detention Alternative Initiative (JDAI) was developed to demonstrate that the youth detention populations could be both substantially and safety reduced by focusing efforts on the detention phase of the juvenile court process.  There are eight core inter-related elements of the JDAI model: (1) collaboration between juvenile justice courts, probation agencies, government entities, and community organizations; (2) collection and utilization of data; (3) objective admissions screening to identify youth at risk including possible public safety concerns; (4) new or enhanced non-secure alternatives to detention, and whenever possible to be within the community; (5) case processing reforms to expedite the system and reduce lengths of custody stay; (6) new court policies and practices for special cases; (7) persistent attention to combating racial or other minority disparities; and (8) monitoring of conditions of confinement for safe and appropriate provision of care.   Douglas County began implementation of JDAI in 2011, and since then the average daily number of youth in detention centers has decreased by approximately 50%.  Programs such as JDAI are showing tremendous promise in helping to identify and more effectively address the mental health needs of youth involved in the juvenile justice system, to include in our local communities.  While more work needs to be done to ensure that these programs continue to develop and are implemented in more communities, they serve as a model for what can be accomplished through the collaboration of multiple government and communities entities to focus on what really matters—our youth.  



 The Annie E. Casey Foundation. (2009).  Issue Brief: Reform the Nation’s Juvenile Justice System.  Baltimore, MD.   

  Kathleen R. Skowyra & Joseph J. Cocozza, Ph.D. (2007).  Blueprint for Change: A Comprehensive Model for the Identification and Treatment of Youth With Mental Health Needs in Contact with the Juvenile Justice System.  Delmar, NY.  National Center for Mental Health and Juvenile Justice.

  United States Department of Justice. (2005). Department of Justice Activities under the Civil Rights of Institutional Persons Act: Fiscal Year 2004.  Washington, DC: United States Department of Justice. 

  Kathleen Skowyra & Joseph J. Cocozza, Ph.D. (2006).  A Blueprint for Change: Improving the System Response to Youth with Mental Health Needs Involve with the Juvenile Justice System.  Delmar, NY.  National Center for Mental Health and Juvenile Justice.

  Chief Justice Michael G. Heavican. (2015). State of the Judiciary 2015.  Lincoln, NE.  

  The Annie E. Casey Foundation.  (2014). Juvenile Detention Alternatives Initiative Progress Report 2014.  Baltimore, MD. 

Helping them Succeed: Transitioning to Adulthood

Helping them Succeed: Transitioning to Adulthood
Helping them Succeed: Transitioning to Adulthood

Kelli Hauptman, J.D. | 1/27/2015

Every practitioner in juvenile court has had at least one.  At least one kid who you knew had so much potential.  So much innate intelligence or raw skill or keen intuition.  You knew it was there. Even though he didn’t get good grades in school or follow instructions well or follow through on plans.  Before long, that kid aged out of foster care.  One final hearing and a tentative plan.  A few years later, that kid is back, now as an adult.  With her own child now entering foster care or with a growing criminal record.  And you rack your head over what happened.  How could someone with so much potential go down the track that so many foster care kids have over the years?

For years, juvenile courts in Nebraska have had jurisdiction only until the child reaches the age of 19.  For good reason, jurisdiction ended once that child became an adult.  But the statistics show that the child’s needs don’t end at age 19.  Over 70% of young women become pregnant before the age of 21, fewer than 2% finish college, 20% become homeless and 25% become involved in the justice system within 2 years.  Using these statistics, many states leveraged federal funds through the Fostering Connections Act to extend jurisdiction to the age of 21 with the goal to help foster youth transition into adulthood.  The logic is that if more support is given during these years when the young person may become homeless or drop out of school or have a baby, statistics will improve.  But in some states although the statistics improved for 19, 20 and 21-year-olds, young people were still having poor outcomes after they left extended jurisdiction.  For many years, Illinois has had extended jurisdiction to 21.  Until the young person reaches the age of 21, Illinois continued to provide case management and services as part of the foster care case.  But long-term results are mixed.  Young people had the same levels of homelessness at 23 and 24(1).  There was some increase in wages but not in actual employment(2).    If young people are provided with supports during an extended transition, then how could they still be having similar levels of hardship after they leave the system?

A comparison could be made to problems in the school system.  For years, schools have struggled with graduation rates.  Studies show that kids who graduate from high school make much more money over their lives than kids who don’t.  So schools have pushed successful completion of high school.  And graduation rates, for the most part, have risen(3).  Yet we are constantly hearing of news and research stating that young people are having a difficult time entering the workforce, that they are not prepared, that they are not capable of job duties.   How can this be?

The answer to both situations seems to lie in the fact that these systems have not successfully prepared them to become adults.  What seems to be a critical factor in an extended program’s success, just like with schooling, is whether it prepares young people for adulthood, and not just for exiting the system.  It’s recognizing that successful completion of a program is not necessarily equal to successful preparation for what’s ahead.

But what does that mean for the child welfare system?  The typical child entering foster care has faced multiple challenges, not least of which include trauma from neglect, or witnessing domestic violence or parental drug abuse.  The typical child entering foster care was not frequently read to and has a smaller vocabulary.  The typical child entering foster care often had patchy social-emotional regulation and has more difficulty in social situations.  The typical child entering foster care is likely to be on at least one psychotropic medication.  The typical child entering foster is not on a level playing field with the average kid.  These problems are not easily remedied.  And they make it more difficult to work a transition plan.

But the problem, when we look in terms of helping a young person become a successful adult, is that employers don’t care what your background is.  Landlords don’t care what your background is. Phone companies don’t care what your background is.  In a way, that is a blessing because a young person can shed the “foster care” label and just be a young person like anyone else.  On the other hand, he or she no longer has a safety net.  Entering adulthood in that reality is harsh and outcomes can be severe.

Nebraska’s new Bridge to Independence is a fantastic program that was created through the dedication and hard work of so many people, including Project Everlast, Nebraska Appleseed, NCFF and DHHS.  In extending services and supports to 21, it has incredible potential in changing the trajectory of many young people exiting the system.  Through this program, young people now have housing assistance, medical assistance and case management.  DHHS staff have made incredible efforts to develop this program to maximize the success of young people.

But, as an entire system, we still need to make the shift in how we view older youth.  Older youth cannot be seen as children who comply with a general case plan but as young people who need to take control of their own futures.  At some point, whether it’s 19 or 21, the young person is going to be completely responsible for his future; preparing the young person for that while in the system is crucial.  Planning needs to start early.  By law, every young person 16 and older must have a transition plan but future planning should start years earlier.  The steps and goals in the plan should be guided by the young person.  Listing goals needs to be accompanied by intense work on how to accomplish those goals.  Young people need to be held accountable just as their employer will hold them accountable for completing work.

Young people in foster care are not on a level playing field.  They have had many disadvantages and are usually steps behind.   But ultimately the world will expect them to function just as anyone else. Young people in foster care must develop the skills and capabilities to do so.  The foster care system and Bridge to Independence can provide structure and supports in helping them develop these capabilities.  But we must make sure we evolve our mindset about older youth.  Transitioning to adulthood needs to start early, it needs to be youth-led and it needs to focus on developing the skills and capabilities for the young person to become a successful adult, not just successfully “graduate” from foster care.

  1. Dworsky, A., Courtney, M.E., (2010) Assessing the Impact of Extending Care beyond Age 18 on Homelessness: Emerging Findings from the Midwest Study. Chicago, IL. Chapin Hall Center for Children at the University of Chicago
     
  2. Hook, A., Courtney, M.E. (2010) Employment of Former Foster Youth as Young Adults: Evidence from the Midwest Study.  Chicago, IL. Chapin Hall Center for Children at the University of Chicago
     
  3. Nebraska High School Graduation Rate Hits Record High

It's Not Good For Youth, It's Not Good For the Community and It's Damn Expensive

It's Not Good For Youth, It's Not Good For the Community and It's Damn Expensive
It's Not Good For Youth, It's Not Good For the Community and It's Damn Expensive

Christine Henningsen | 12/02/2014

While lots of families were busy putting the final touches on their Halloween costumes, hundreds of juvenile justice stakeholders convened in Lincoln, Nebraska for the first ever Nebraska Community Aid and Juvenile Justice Conference. The Nebraska Crime Commission and Lancaster County put together the conference, which was held, at the Downtown Holiday Inn, October 29-31. The goal of the conference was to discuss the recent changes to Nebraska’s juvenile justice laws and introduce counties to local and national practices, which have produced positive outcomes for youth, families and communities. The highlight of the first day was a keynote address from Dr. Mark Lipsey, Director of the Peabody Research Institute at Vanderbilt University. The quote, featured as the title of this article, comes from Lipsey’s presentation, which highlighted research showing that, “the most restrictive and punitive juvenile justice programs tend to be the least effective at reforming young people.” When you equate accountability with punishment, “you actually make recidivism worse.” Higher rates of recidivism result in less safe communities, so it is critical that we carefully craft our work with you and are cognizant of the differences between adult offenders and youth offenders. This data and advancements in adolescent brain research is what led to statewide and nationwide reform in the arena of working with system involved youth. Read this story from the Lincoln Journal Star, which describes Dr. Lipsey’s address and more specifics about the conference.

Dr. Lipsey stressed that decisions, regarding diversion, detention and disposition planning, must be informed by proven assessment tools and interventions must be tailored to the specific needs of the youth. Only then can we truly protect our communities and produce better outcomes for our children. Two programs, currently looking at better ways to track recidivism data and use that data to inform best practices are the Community Based Aid Grants through the Crime Commission and Probation Administration’s partnership project with the Council of State Governments (CSG). The Crime Commission is working with UNO’s Juvenile Justice Institute to define and track which community based aid grant programs are aligned with evidence based practices. Click here for more information about the Juvenile Justice Institute.

The Crime Commission announced the request for proposals under the Community Based Juvenile Services Aid, which are due Monday, January 12, 2015 for the award period of July 1, 2015 - June 30, 2016. The minimum award for any county, regardless of size is $5,000. Click here for more information about Community Based Juvenile Services Aid through the Nebraska Crime Commission.

Please do not hesitate to contact me if you have questions regarding the Community Based Aid grants for counties and please do not let this opportunity to develop local resources pass you by. The Crime Commission wants to work with you to access these funds allocated by the Nebraska State Legislature. There is also an exciting partnership between State Probation and the CSG to examine how we can better track recidivism data and how to institute core principles proven to decrease recidivism among youth. You can read more about strategies for measuring recidivism data here and the core strategies here. Nebraska was chosen as one of four pilot sites, which will use the research to best inform legislation, utilize assessments, identify state and local priorities, and develop an action plan which creates positive results with efficient resource utilization. The team from CSG was in Nebraska, November 12y 14 meeting with judges, prosecutors, defenders, service providers, probation, HHS, an many others to learn about how our current system operates and solicit feedback on how we can best move forward. We will keep you informed on the progress of this project and would love to hear from the teams about what is going well in your community and what is needed to produce brighter tomorrows for our youth. As always, we thank you for your continued commitment to Nebraska youth and wish you a wonderful holiday season.

Impact From Infancy-Douglas County

Impact From Infancy-Douglas County
Impact From Infancy-Douglas County

Jennie Cole-Mossman | 10/28/2014

Impact From Infancy is funded by The Buffett Early Childhood Fund and targets families with children age zero to five that have been removed from the parental home pursuant to an abuse/neglect filing in Douglas County Juvenile Court.  The goals are to reduce the amount of time young children spend in foster care, reduce the number of placements, identify barriers to timely and appropriate service interventions, facilitate early service implementation, and decrease their risk for re-entry into the child welfare system.

The staff consists of three case coordinators and a program supervisor who regularly attend juvenile court hearings.  All four staff members spend several years working in this field in various capacities (case manager, hospital social worker and prosecuting attorney).  A multidisciplinary team comprised of professionals who specialize in infant mental health and early childhood education review every case meeting where the above criteria has been formed.  Team members include mental health therapists from Child Savings Institute, Heartland Family Services, Lutheran Family Services and Project Harmony.  Most of these therapists are trained in trauma-informed, evidence-based practices such as Child Parent Psychotherapy (CPP) and Parent-Child Interaction Therapy (PCIT).   The team also has participation from several school districts to represent the Early Development Network and other early intervention services.  The team members are charged with making recommendations to case professionals and the Court for services for these families, considering their unique social and emotional needs.   This project is in collaboration with the Nebraska Court Improvement Infant and Toddler Project. 

For questions about Impact from Infancy please contact Carrie Strovers.

Crossover Youth Practice Model Implementation in Douglas County

Crossover Youth Practice Model Implementation in Douglas County
Crossover Youth Practice Model Implementation in Douglas County

Nick Juliano | 07/08/2014

The Crossover Youth Practice Model (click here for model) (CYPM) aims to improve outcomes for “crossover youth” – youth who have experienced maltreatment, engaged in delinquency and are known to both the juvenile justice and child welfare systems. Research shows that youth who have been abused or neglected are at higher risk of entering the juvenile justice system, therefore becoming “crossover” youth. CYPM was formally implemented in Douglas County November 1, 2012 after nearly a year of program development with the local stakeholder group and technical assistance from the Georgetown Center for Juvenile Justice Reform (CJJR). The most unique feature of Douglas County’s implementation was the intentional focus on the youth and family voice. This is evident in the fact that the multi-disciplinary team meetings which occur at the Juvenile Assessment Center each Thursday have the youth and family present for the case review, problem solving, and recommendation to the county attorney. In addition, the Nebraska Family Support Network (NFSN) and Project Everlast are part of the public private partnership responsible for the design and implementation of Douglas County’s CYPM. In discussions with national experts on the CYPM we have been told we are likely the only model site that has committed to this level of youth and family involvement in the process and see that it has tremendous potential for success in Douglas County.

The CYPM has recently been expanded to include three additional sites within Nebraska:  Dodge County; Gage County; and Lancaster County.  This expansion is made possible with funding from Nebraska’s Office of Probation Administration and support from the Department of Health and Human Services.

Adoption Day Celebrations Across Nebraska

Adoption Day Celebrations Across Nebraska
Adoption Day Celebrations Across Nebraska

01/09/2014

National Adoption Day was celebrated throughout the State of Nebraska in seven courts in November and an additional two courts in December. Judges in Lincoln, Omaha, Fremont, Hastings, Grand Island, Kearney, North Platte, and Scottsbluff finalized adoptions for children in our state’s foster care system.

According to the National Adoption Day website (www.nationaladoptionday.org/about), the day “helped nearly 44,500 children move from foster care to a forever family.” Here in our state, the Department of Health and Human Services reported that 453 state wards were adopted during the 2012 calendar year. On this year’s Nebraska Adoption Day, over 100 foster youth were adopted.

Judge Elizabeth Crnkovich of the Douglas County Separate Juvenile Court told the Omaha World-Herald “I love adoption Saturday. It’s the best day of the year. … It is one of the brighter spots.” The day (along with National Reunification Day) serves as an opportunity for Judges and child welfare stakeholders to focus on positive outcomes for children in foster care. You can read more about Adoption Day celebrations in Nebraska by clicking the links below.

The Autumn of 561

The Autumn of 561
The Autumn of 561

By Christine Henningsen

10/21/2013

Autumn is upon us. Steaming cups of apple cider, visits to pumpkin patches, Big 10 Nebraska football, and juvenile justice reform. October 1, 2013, was a big day for all of us involved with and affected by LB 561. Those most impacted by the new bill, the youth of Nebraska, probably did not even know that the first of October was anything more than a normal Tuesday. It is our responsibility to ensure that the youth are positively impacted by the reform. To that end, the Juvenile Justice Court Improvement Project (JJCIP) was created to advance the goals of rehabilitation of involved youth in a process that is fair to all parties and maintains community safety. JJCIP is focusing on 6 outcomes as we transition to our state’s new model:

  1. Successful implementation of LB 561 within the courts;
     
  2. Increase knowledge and understanding about scientific advances and best practice developments that promote rehabilitation and reduce recidivism among youth who violate the law and status offenders;
     
  3. Promote and support local problem solving in improving the juvenile justice court process;
     
  4. Increase the use of facilitated conferences, including restorative justice models and family engagement models, as part of the juvenile justice court process;
     
  5. Collection and analysis of local and state data about court processes and youth outcomes in juvenile justice; and
     
  6. Improve the quality of legal representation.

The bill’s intent to positively impact both Nebraska’s youth and communities needs the commitment and hard work of all involved to be realized. As I look out upon the trees as their leaves change, I am reminded that change is beautiful, but it can also be messy. However, this change is necessary, and JJCIP is a resource as we navigate the reform and improve the functioning of juvenile court.

JJCIP is working with the courts and attorneys to provide education and technical assistance surrounding the changes found in LB 561. This also includes future work on legislation to help ease some of the issues that have arisen since LB 561 has gone into effect. We will work with attorneys to enhance the quality of legal representation. We will be expanding our website to include additional resources for those involved in juvenile court including scientific advances, best practice developments, and current case law. We’ll be expanding our trainings to include issues involving juvenile justice. As we expand our focus, we strive to collaborate with other juvenile stakeholders and utilize national models that have been proven effective in other jurisdictions. As an attorney, with experience representing juveniles, I understand challenges that practitioners face, and JJCIP can provide support and technical assistance, as we all work towards the best outcomes for Nebraska youth.

As Chief Justice Heavican announced, we are asking the Through the Eyes of the Child teams to expand their focus to include youth who enter our system through delinquency and status offenses. The local multidisciplinary teams provide invaluable insight as Nebraska refocuses on community-based juvenile services. LB 561 retitled the County Juvenile Services Aid Program to the Community-Based Juvenile Services Aid Program and increased Community-Based aid from $1,477,575 to $3,000,000 in FY 2013-2014 and to $5,000,000 in FY 2014-2015. We must use these funds to wisely invest in our youth. As we develop and enhance evidence-based practices, it is the goal of JJCIP to increase the use of facilitated conferences, including restorative justice and family engagement models. In addition to all of the above, we recognize the collection and analysis of state and local data is crucial as we move forward, and we will be assessing available data and working with JUSTICE and probation to develop accurate reports about young people’s involvement in the juvenile justice court system. I am thankful to be working with all of you, and I look forward to hearing more from all of you. The work will be hard, but rewarding, as we evolve towards a brighter tomorrow for all of Nebraska.

Changing Views

Changing Views
Changing Views

Tiffany Wasserburger, Deputy Scotts Bluff County Attorney | 06/06/2012

Practicing in Juvenile Court is hard work. There are myriad duties and responsibilities as well as time and budget constraints. Perhaps the heaviest burden we bear is the responsibility for the welfare of children who are dependent on others for every aspect of their well-being. Food, shelter, security, safety and development all become our responsibility when a child enters the system. Adhering to statutory requirements, administrative policy and procedure and the adversarial nature of the court system can all come to seem like roadblocks to our ultimate goal: providing safety, security and stability to the children of our state.

The 34th National Child Welfare, Juvenile and Family Law Conference on Eliminating Unintended Bias directly addressed issues which are presenting unique challenges to our juvenile system including the effects of domestic violence on children, the need for collaboration in an adversarial system and the need to listen to the voices of the children themselves.

Our communities are struggling with increasing numbers of drug-affected and addicted parents, domestic violence in the home, parents who are functionally unable to care for their children and children who are permanently affected by this lack of care. Children are often the unseen victims of domestic violence. Although they are in the same dangerous situation as the adult victim, they are rarely identified in police reports or interviewed as part of the investigation. Exposure to domestic violence can affect the formation of the child’s brain and their ability to form a healthy relationship later in life. Children growing up in homes with domestic violence often have increased school truancy, drop-out rates and drug and alcohol abuse. Exposure to domestic violence in the home can help shape children’s gender roles as well: girls learn to expect violence from an intimate partner and boys learn to use violence to control their intimate partners. The epidemic of domestic violence in our communities continues to impact our children every day, yet these cases can slip through the system without addressing the underlying cause and effect of the violence. As practitioners in juvenile court, we must remain vigilant about addressing domestic violence in the home, even when other concerns may initially draw our attention.

Our State is becoming more and more culturally diverse, which can raise many difficult issues in juvenile cases. Lack of experience with these cultures can be an impediment to properly acknowledging and respecting the importance of the culture and educating children about their cultural heritage. Issues raised by ICWA cases have caused an increase in juvenile appeals, which can indefinitely postpone progress on the case, thus suspending children in foster care rather than finding a safe and permanent home. There is a great need in rural areas for resources including therapists specializing in child development, recognition and treatment of juvenile mental health issues, recognition and treatment of juvenile sexual offender and victim issues, parental assessments, concurrent substance abuse/mental health treatment and treatment options for parents who are domestic violence offenders.

One of the most effective ways to address these needs is through collaboration in juvenile court proceedings. Collaboration allows for improved communication on the juvenile cases and brings many different points-of-view to the table. It utilizes the available expertise, provides for respectful disagreement and the sharing of complete information during the case management process. Collaboration also allows for the presentation of differing views at court hearings so Judges have the entire picture rather than just fragments before making their decision.

The most memorable lesson of the conference was the reminder that our work is done on behalf of the children and we have to learn to really listen to them. It is often easy to determine what changes the parents must make to be safe and appropriate for their children. However, in the competing noise of attorneys, caseworkers, judges, deadlines and filings, we often fail to look at the case from the child’s point of view. How does it really feel to be removed from the only home they have known? Ultimately, we have obligated ourselves to protect the children and we must find a way to hear their voices.

Collaboration: A Unique Perspective Towards Advocacy for Children

Collaboration: A Unique Perspective Towards Advocacy for Children
Collaboration: A Unique Perspective Towards Advocacy for Children

Jennifer Chrystal-Clark, Deputy Douglas County Attorney | 05/01/2012

Juvenile Court is an entity unique from any other Court and one’s experience in Juvenile Court can be stressful. For a prosecutor, not only are they burdened with proving the facts in a case but they also must deal with numerous entities involved in the Juvenile Court system. There are the police who may have removed the children; child protective services who conduct an initial assessment for the family; medical personal who examine the children for any physical signs of abuse; and mental health professionals who provide therapeutic needs for the family. All these different entities must work together, not only to provide services to the family, but to assist the prosecution about the facts of the case. If these entities do not talk with one another, if these entities do not work together, and if these entities work in opposition to one another then the prosecutor may obtain conflicting facts, families are not provided services and children continue to suffer. One of the biggest problems in Juvenile Court is that there are so many agencies that have a stake in the case. These agencies have their own goals and agendas in the case that foster disagreements. Although different opinions are important, the differing opinions can also cause tension, unwillingness to communicate and an overall breakdown of the system. There needs to be a better way to help children and their families navigate through Juvenile Court.

There is a better way and it is called Project Harmony. Project Harmony is a child abuse advocacy center that was established in 1996. The center is located in Omaha, Nebraska. Project Harmony centers on collaboration between several agencies to include Nebraska Department of Health and Human Services, Omaha Police Department, Douglas County Sheriffs, medical professionals, Lutheran Family Services (mental health services), Child Savings Institute (therapeutic, supportive services), and the Douglas County Attorney’s office. It is a center in which all the above agencies co-habit in one facility in order to allow for a “one-stop” shop for abused and neglected children. The multi-disciplinary approach has been recognized nationally by the National Children’s Alliance for its on-going dedication to children. The facility provides immediate and effective response to children of abuse and neglect. Although the process is simple, it is unique in its approach to the area of child abuse. Project Harmony is one of the few child advocacy centers in the country that houses all the agencies under one roof. Project Harmony is accredited through the National Children’s Alliance and is one of 8 centers that make up the Nebraska Alliance of Child Advocacy Centers. Having the numerous agencies housed in the same building affords them an opportunity to discuss cases with one another, share information and connect the family to services. Another benefit for a child advocacy center like Project Harmony is allowing the child victim to only have to tell their story once. A forensic interview specialist who is trained in child victims conducts the interview on site of the child advocacy center. The room is decorated to allow the child to feel comfortable and to reduce stress and tension. The interview room also allows for multiple personnel to watch the interview. This could include the police, child protective services, the prosecutor and a mental health professional. The interview is also taped to allow defense attorneys an opportunity to review the interview. The child is also able to be physically examined on site, receives new clothes and a “support gift” to include a stuffed animal and blanket. The child is able to realize that the process is not intrusive. The child is able to realize that they are supported. All the information obtained through the physical examination, the interview and child protective services initial assessment are shared with the numerous agencies in order to ascertain the facts of the case, services that need to be offered, and to discuss their opinions.

Unfortunately, many jurisdictions do not have this type of collaboration that is utilized at Project Harmony. In fact, such a center and its process are unheard of in other areas of the country. Children are removed from the parental home by law enforcement, taken to foster care or shelter and that is when law enforcement involvement ends. There is no specialist interviewing the child victim and even if the child is interviewed, it is not by a specialist with expertise on children. Law enforcement writes their reports without any input by CPS or other professionals and then “hands the case off” to CPS. CPS becomes involved in the case once the State files the petition against the parents or caregivers. This could mean that CPS starts their investigation 48 hours after the child was removed from the parental home. Information is no longer fresh in the witness’ minds, children regret disclosing the abuse and want to go home, and parents have become increasingly frustrated with the system. Instead of being involved with the police investigation, the Initial Assessment worker is playing catch up with the case. Without the child advocacy center, the child is taken to multiple locations with strangers who want them to tell them very private information. The child will not trust the adults. The child will shut down and refuse to engage with the professionals. The child will regret disclosing the abuse or neglect, recant and be allowed to return to the parental home. The child returns to an abusive home and the cycle of violence continues. In the end, no real help was provided to the family and specifically for the child. The family is now mistrustful of the system and the child believes that no one cares about their pain and hurt.

Many issues about the child abuse system could be alleviated by setting up a child advocacy center in most major cities and jurisdictions. Unintended bias towards families would become minimal by agencies following a standard procedure when a child is removed. This standard procedure, in which all agencies work together for the benefit of the child and family, ensures that every child has to only tell the story once; that a child will always receive a physical examination; that a child is offered mental health services; that the family is contacted immediately in regards to the child’s removal, interviewed and immediate services are offered. Unless the cause of removal, such as a shaken baby or death of a child, is one in which services would be inappropriate after a child is removed, a family is given that opportunity to initiate services, utilize them and work towards reunification. The Juvenile Court system would operate efficiently with the focus being on the family and the children rather than on disagreements. The agencies would work together rather than against one another. This idea of collaboration is not a unique one but Project Harmony takes this idea and creates almost perfection.

Correcting Misconceptions About Youth with Sexual Behavior Problems

Correcting Misconceptions About Youth with Sexual Behavior Problems
Correcting Misconceptions About Youth with Sexual Behavior Problems

Tana Fye, J.D., Law Offices of Tana M. Fye, Holdrege | 03/30/2012

Misconceptions, we all have them. And we likely have the strongest misconceptions about those topics which evoke a strong emotional reaction simply by the topic being named.

During the 34th National Child Welfare, Juvenile, and Family Law Conference, put on by the National Association of Counsel for Children, I was fortunate to attend a session on “Juvenile Sexual Offending: Prevention, Treatment, and the Law.” Then, during the Through the Eyes of the Child Initiative’s 2011 Regional Conference, one of the breakout sessions was on “Children’s Sexual Behavior: What’s Common, What’s Concerning, and What to Do.” These two presentations certainly corrected a few misconceptions that I had regarding youth with sexual behavior problems, beginning with the language that we should use when referring to these youth.

Because the topic of sexual behavior evokes strong emotion and strong reactions, it is important that we use language that is appropriate to the particular circumstances and particular individual with whom we are dealing. We need to use terms that are developmentally sensitive, focus on the behavior(s), and separate the behavior of the children and adolescents from criminal acts of adults.1 Therefore, we must first define a few terms. “Sexual behavior problems (SBP) are defined as child(ren)-initiated behaviors that involve sexual body parts (i.e. genitals, anus, buttocks, and/or breasts) in a manner that is developmentally inappropriate and potentially harmful to themselves or others.”2 Silovsky and Hedrickson recommend the following terms: children with sexual behavior problems, referring to children 12 years of age and younger; adolescents with illegal sexual behavior, referring to older children/youth whose behaviors rise to the level of illegality; and youth with sexual behavior problems, referring to older children/youth, whose behavior problems do not rise to the level of illegality.3

Bross and Ryan recommend differentiating between abusive and illegal sexual behaviors, stating, “[s]ome sexual behaviors are illegal but not abusive; others may be abusive but not defined by law as ‘offenses.’ Abusive behaviors cause harm even if they are not illegal.”4 Moreover, they define ‘sexually abusive behavior’ as sexual behavior occurring with: (1) lack of consent; (2) lack of equality; (3) coercion.5

Whatever terminology we use, it is clear that we cannot refer to youth with sexual behavior problems as ‘perpetrators’ or ‘sex offenders.’ These are youth whose behaviors are more akin to other forms of delinquent behaviors. And while juvenile sexual offenses do cause harm and certainly cannot be ignored, like other juvenile delinquent behaviors, these particular offenses “are not necessarily indicative of long term risk. Some minority of these youth does have deviant sexual interests/ arousal and may continue to be at risk across the life span; however, most are more like other delinquents than like adult sex offenders, and can be helped to stop these behaviors.”6

So how do we know if sexual behaviors are a problem or are normal development of children? Silovsky and Hendrickson provide guidelines of typical sexual development: exploratory; spontaneous; intermittent; by mutual agreement; with children of similar age, size, and development level; not accompanied by anger, fear, or strong anxiety; and it occurs with children that are already known to them.7 Sexual behaviors that are a problem, by contrast: are intrusive, rare sexual behaviors; occur with greater frequency or duration than developmentally expected; are coercive or aggressive; are potentially harmful to the child or to others; their frequency excludes normal childhood activities; do not decrease with typically effective parenting strategies; occur between youth of significantly divergent ages or developmental levels; elicit fear and anxiety in other children.8

We typically think that if a child is exhibiting sexual behavior problems, then he or she must have been sexually abused, but, in fact, this is not the case. Most children who have been sexually abused do not exhibit these behaviors. However, there are risk factors associated with youth who exhibit sexually abusive behaviors.9 These risk factors are:

  1. Exposure: “Things which happen around the child, which may become opportunities for deviant learning through observation.”
     
  2. Experiential: “Things which happen to the child, through which the child acquires beliefs and/or emotional associations which are accommodated/ assimilated into view of self, others, and the world.”
     
  3. Deficits: “That which is missing is the exposure, experience, and development of the child which may increase the risk of dysfunctional coping and behaviors.”
     
  4. Deviance: “That which is different from the norms of most people: family, peers, or community.”10

Another misconception is that the only way to effectively treat children with sexual behavior problems or who exhibit illegal or abusive sexual behaviors is in a residential treatment facility. However, many of these youth are successfully treated in shorter, less intensive treatment programs.11 In fact, “[r]esidential and inpatient treatment should be reserved for [the] most severe cases, such as youth with other psychiatric disorder[s] and/or continued problematic sexual behavior that recurs despite appropriate outpatient treatment and supervision.”12 Most of these youth can attend public schools, participate in activities, and remain in the community during their treatment, without jeopardizing the safety of other students, children, and community members.13 Treatment and safety plans must be individualized to the individual youth, because the sexual behavior problems of the youth, and the children themselves are diverse.14 The level of risk of the youth is the primary factor to be considered in determining his or her placement. Such a decision should take into account the severity of past and present sexual problems, the degree of self-control and general delinquent problems, and the degree of any other problems such as psychiatric or drug problems.15

So, in sum, there is no denying that sexual behavior problems among youth are serious. But equally serious is how we respond to these deviant behaviors. We must treat the behaviors as deviant behaviors, but not treat the youth who have committed those behaviors as sex offenders or perpetrators. We need to recognize that treatment of these youth and their behaviors is effective, and that these youth are not simply lost causes. And we need to remember that locking these youngsters away in residential treatment facilities may not be the best approach, and certainly shouldn’t be the first approach, as outpatient treatment and counseling when combined with supervision is more successful with most youth. Correcting misconceptions about youth with sexual behavior problems is important if we are going to protect and heal these youth, as well as ensure the safety of others.

The Role of Bias in the Juvenile Court System

The Role of Bias in the Juvenile Court System
The Role of Bias in the Juvenile Court System

Joy Suder, Douglas County Public Defender | 02/20/2012

I had the privilege of attending the 34th National Child Welfare, Juvenile, and Family Law Conference in San Diego late last summer. As a defense attorney practicing in juvenile court, I was particularly interested in Dr. Rita Cameron-Wedding’s presentation challenging participants to address how their own biases play a role in perpetuating institutional racial stratification. Specifically, Cameron-Wedding pointed to how biases, coupled with the Safe School Act of 1994, have led to an alarming increase in juvenile delinquency petitions filed across the country and perpetuates the over-representation of minorities in the juvenile justice system.

In 2011, the Justice Center at the Council of State Governments of Texas released a study of over one million middle and high school Texas students surveyed over a six-year period. That study found that nearly 60 percent of Texas students were suspended off campus or expelled at least once.1 Further, the study found that while certain offenses require mandatory suspension or expulsion, 97 percent of the suspensions were discretionary.2 The study also showed that minority students facing first-time disciplinary action were given more out-of-school suspensions than in-school-suspensions., and that 15 percent of those suspended or expelled had at least one open docket in the juvenile court.3 Many experts agree that the Texas results are representative of the nation as a whole.4

Those of us that work with children know the risks associated with suspensions and expulsions. Children are taken out of school and frequently left at home with no supervision for days at a time. They are removed from extra-curricular clubs and teams. When the children return to school they are frequently placed in classrooms for those who are behaviorally difficult. These actions further decrease these students’ odds of graduating high school, which carries a direct correlation to future criminal activity. Research indicates that about 75 percent of America’s state prison inmates, almost 59 percent of federal inmates, and 69 percent of jail inmates did not complete high school.5

Many experts point to the Safe Schools Act of 1994 (SSA) leading to the increase in suspensions and expulsions.6 The SSA, however, has been described by the Fourth Circuit as, “merely a grant program, with a stated purpose to ‘support grant programs to meet the seventh National Education Goal by preventing violence in and around schools … through the provision of Federal assistance to … States for Grants …’ 20 U.S.C. § 7103.”7 To receive federal grants, schools are required to adopt regulations intended to ensure schools are safe and any child that represents a danger to herself or others is removed. Cameron-Wedding suggests that the single-most harmful effect of the SSA that has led to an increase in juvenile court petitions is the presence of student resource officers (SRO) in public schools.

Armed with the chilling statistic that 97% of suspensions or expulsions in Texas were discretionary, and that experts agree those results can be attributed to the nation as a whole, we are left with the question of why students are being removed from schools at such an alarming rate. Cameron-Wedding argues the presence of SROs changes the school setting to a police setting where the balance of respect towards teachers is upset. With police presence down the hall, students and teachers alike are less inclined to feel safe and more inclined to believe a risk of harm is ever-present in the school.

With the balance upset, Cameron-Wedding argues, teachers and administrators tend to avoid teachable moments—the discipline for which could be dealt with in-house—and instead rely on the SRO to deal with the situation with a criminal citation. With SROs down the hall, disciplinary actions lead to criminal actions. This also leads to duplicative punishment: in-house discipline at school—detention, suspension, or expulsion, and then a juvenile court case that has the potential of staying open for several years.

Cameron-Wedding suggests that the continued overrepresentation of minorities in the criminal justice system can only begin to be alleviated by straightforward, candid and uncomfortable discussions about our own biases and what shapes them, specifically the misguided idea of “color blindness” and stereotypes.

The concept of “color blindness”—that a person is able to see past race and ethnicity—is an attractive idea in the post Civil Rights era. Whoever acknowledges race and ethnicity openly runs the risk of being labeled a racist, which results in a lack of communication about underlying biases and our reactions to those biases, which in turn reaffirms the disparate treatment of identical cases but with parties of different races. And if we can’t talk about our biases without the risk of being labeled a racist, we can’t change the “rules” that tell us how to deal with race.

Cameron-Wedding describes stereotypes as “one of the most profound information systems out there.” On the conscious level, we are able to say what we believe. However, the unconscious level is what impacts our thinking in making split-second decisions. A person’s past experiences will influence future actions—or inactions. Only by giving solid thought to the question, “What do I look for in certain people?” can we begin to see the depth—and power—stereotypes have on our own actions.

Schools have the responsibility of educating and socializing youth. Cameron-Wedding argues schools have also become the pipeline to juvenile justice system. The SSA was intended to ensure schools are safe and any child that represents a danger to herself or others is removed. Teachers and administrators are applying zero-tolerance rules across the board, with 97 percent of expulsions being discretionary. Cameron-Wedding posits teachers see risk more palpably when dealing with kids of color, especially when the child has a history of disruption or delinquent behavior, which most likely stemmed from not being the recipient of a teachable moment the first time the behavior was displayed.

We all have biases, and confronting them and accepting the effect they have on our actions in handling cases—whatever role we play—will help us progress towards eliminating racial bias in the judicial system. It will only be through candid and uncomfortable discussions that we advance personally and professionally, with the ultimate goal of doing better by the children we serve.

All Alone in the World: Children of the Incarcerated

All Alone in the World: Children of the Incarcerated
All Alone in the World: Children of the Incarcerated

Jennifer D. Joakim | 11/08/2011

In late August of this year, I had the privilege of attending the National Association of Counsel for Children (NACC) 34th National Child Welfare, Juvenile, and Family Law Conference in San Diego, California, which was held at the Hotel Del Coronado, a historic resort on Coronado Island. NACC’s stated goal is to ensure that attorneys representing families and children are well-trained and effective. Toward that end, the theme of this year’s conference was “Eliminating Unintended Bias.” The opening speaker was Nell Bernstein, acclaimed writer, award-winning journalist, and coordinator of the San Francisco Children of Incarcerated Parents Partnership (SFCIPP). She is also the author of “All Alone in the World: Children of the Incarcerated.”

Nell Bernstein presented data from studies related to children of incarcerated parents and their families. Indeed, the figures she shared are staggering- according to the U.S. Department of Justice, 2.4 million American children have a parent behind bars today. Seven million, or one in ten of the nation’s children, have a parent under criminal justice supervision.1 The conclusion was obvious for Bernstein and her colleagues- that a children’s perspective is the logical framework from which future work should evolve.

Thus, a Bill of Rights for children of the incarcerated was born. Nell Bernstein interviewed over 30 young people who had experienced parental incarceration and along with other advocates and SFCIPP, created a Bill of Rights for children of the incarcerated, first published in 2003. Those rights are:

  1. I have the right to be kept safe and informed at the time of my parent’s arrest.
     
  2. I have the right to be heard when decisions are made about me.
     
  3. I have the right to be considered when decisions are made about my parent.
     
  4. I have the right to be well cared for in my parent’s absence.
     
  5. I have the right to speak with, see and touch my parent.
     
  6. I have the right to support as I face my parent’s incarceration.
     
  7. I have the right not to be judged, blamed or labeled because my parent is incarcerated.
     
  8. I have the right to a lifelong relationship with my parent.

As Nell Bernstein pointed out, children of the incarcerated are subject to three main forms of unintended bias: stigma, invisibility, and judgment toward their families.

Children of the incarcerated are often stigmatized by people coming to help them with preconceived notions and they are then treated according to that bias. Children of the incarcerated are label “at risk” to offend themselves. Rather than labeling children of the incarcerated parents “at risk” and judging them, Bernstein contends that we should approach them as we would any other child whose parent has been involved in some tragedy and not afforded the necessary support, and assess what each child needs as a result.

Moreover, children of the incarcerated are often “invisible”. For example, many law enforcement agencies lack protocol when dealing with children at the time of their parent’s arrest. The available figures show that 70% of children of the incarcerated where present at the time of their parent’s arrest and 30% children were present when dangerous weapons where drawn on their parent.2 Many children who witnessed the arrest of a parent later exhibited post-traumatic stress disorder.3 Many children suffered classic symptoms of post-traumatic stress, such as being unable to sleep or concentrate and had flashbacks to the moment of the arrest.4

Judgment toward families is another form of unintended bias which frequently arises in this context. Bernstein noted the existence of a “dual system” where children of the incarcerated are often involved with juvenile justice system. Bernstein further stated that many parents, upon intake, will underreport the existence of children or the custodial status of their children, for fear that their subsequent incarceration will result in their children becoming wards of the state, or will result in the termination of their parental rights. While the current figures show that 11% of all incarcerated persons were custodial parents at intake, Bernstein contends that the figures are much higher due to underreporting, and could be as high as 25%.

So, what can be done to address these inherent biases and the other issues that face the children of the incarcerated? SFIPP, building off the Bill of Rights, began the Rights to Realties Initiative, a correlating action plan with the long term goal of ensuring that every child in San Francisco whose parent had been arrested and incarcerated is afforded the aforementioned rights. The agenda for action is as follows:

1. I have the right to be kept safe and informed at the time of my parent’s arrest.

Develop arrest protocols that support and protect children.

Offer children and/or their caregivers basic information about the post-arrest process.

 

2. I have the right to be heard when decisions are made about me.

Train staff at institutions whose constituency includes children of incarcerated parents to recognize and address these children’s needs and concerns.

Tell the truth.

Listen.

 

3. I have the right to be considered when decisions are made about my parent.

Review current sentencing law in terms of its impact on children and families.

Turn arrest into an opportunity for family preservation.

Include a family impact statement in pre-sentence investigation reports.

 

4. I have the right to be well cared for in my parent’s absence.

Support children by supporting their caretakers.

Offer subsidized guardianship.

 

5. I have the right to speak with, see and touch my parent.

Provide access to visiting rooms that are child-centered, non-intimidating and conducive to bonding.

Consider proximity to family when siting prisons and assigning prisoners.

Encourage child welfare departments to facilitate contact.

 

6. I have the right to support as I face my parent’s incarceration.

Train adults who work with young people to recognize the needs and concerns of children whose parents are incarcerated.

Provide access to specially trained therapist, counselors, and/or mentors.

Save five percent for families (allocate 5% of corrections budget to support prisoners’ families both during and after a parent’s incarceration.)

 

7. I have the right not to be judged, blamed or labeled because my parent is incarcerated.

Create opportunities for children of incarcerated parents to communicate with and support each other.

Create a truth fit to tell.

Consider differential response when a parent is arrested.

 

8. I have the right to a lifelong relationship with my parent.

Re-examine the Adoption and Safe Families Act.

Designate a family services coordinator at prisons and jails.

Support incarcerated parents upon reentry.

Focus on rehabilitation and alternatives to incarceration.

 

The Rights to Realities Initiative seems like a tall order, however, currently fourteen states have partnered to implement the Rights to Realities Initiative via the National Partnership for Children of Incarcerated Parents.

Some goals of the Initiative are already being met in Nebraska- for example, the 1997 federal Adoption and Safe Families Act mandates that states must bring proceedings to terminate parental rights if a child has been in foster care for 15 out of the past 22 months. Nebraska, by statute, prohibits filing a termination proceeding “if the sole factual basis for the petition is that … the parent or parents of the juvenile are incarcerated.” Neb. Rev. Stat. § 43-292.02(2) (Reissue 2004). However, other goals seem to be noticeably unmet- such as providing a family impact statement in pre-sentence investigation reports and considering proximity to family when assigning prisoners. It is questionable whether law enforcement agencies among our 93 counties have developed protocols for dealing with children at the time of their parent’s arrest. And are guardianships with family given priority over adoption with non-relatives in our courts?

Nebraska currently is not involved in the partnership, which begs the question- are we doing enough from the child’s perspective and should we be implementing the Rights to Realities Initiative?

A Meaningful Defense for a Juvenile Defendant

A Meaningful Defense for a Juvenile Defendant
A Meaningful Defense for a Juvenile Defendant

Brittani Lewit, J.D. | 08/11/2011

Defendants in criminal proceedings have a due process right to present a meaningful defense. They have the right to see and hear the State’s witnesses, to have those witnesses cross-examined by their attorney, to present witnesses of their own, and to testify in their own defense. Juvenile defendants have these same rights in law violation proceedings. However, extra efforts need to be made to ensure that a juvenile’s right to present a meaningful defense is preserved.

Children and adolescents differ from adults in their cognitive, social, and emotional development. For this reason special care should be taken when conducting direct or cross-examination of a juvenile defendant who testifies in his or her own defense. Defense attorneys and prosecutors need to not only keep the limitations of the defendant’s vocabulary in mind, but also their potential response to examination methods and the risks associated with an aggressive examination. At last year’s National Association of Counsel for Children’s annual conference, Frank Vandervort, a clinical assistant professor of law at the University of Michigan law school, discussed issues unique to examination of juvenile defendants in his presentation entitled “The Juvenile’s Right to be Cross-Examined in a Developmentally Appropriate Fashion: The Role of Defense Counsel and the Court.”

Barriers to a Meaningful Defense

Juvenile court proceedings are designed to protect and rehabilitate children who are accused of violating or are found to have violated the law. For example, dispositions do not include jail time, but instead efforts designed to address the juvenile’s needs and those of his or her family. The unique protections afforded to juveniles in these cases should also extend to their ability to present a meaningful defense. In order to preserve this constitutionally protected right, children and adolescents need to be cross-examined in a developmentally appropriate way.

One barrier to presenting a meaningful defense is the tendency of attorneys to overestimate the development of adolescents. While we do much better with younger children, we often examine teenagers as though they are adults, and we do not always recognize when the witness does not understand our questions. Research further suggests that it is not until age sixteen that adolescents’ cognitive development is similar to adults. However, their social and emotional development is still not fully developed, contributing to a lack of impulse control. This does not take into consideration the fact that allegedly delinquent youth tend to be developmentally behind their peers; making the need for attorneys to be cognizant of an individual’s development even more important.

This lack of emotional and social development means a very aggressive, attacking cross-examination by the prosecution will likely result in a juvenile defendant either shutting down or striking back with an inappropriate outburst. While a juvenile defendant may understand the prosecutor’s question about whether he shoplifted, if the question is overly antagonistic or the examiner harassing, it will only serve to upset the defendant in a way that does nothing to further the truth finding process. This is not meant to imply that prosecutors should not be permitted to cross-examine a juvenile defendant in a way she or he finds effective, but simply that when doing so consideration should be given to the defendant’s cognitive, emotional, and social development. Otherwise a defendant’s response may be more reflective of his or her inability to handle an attacking examination than truthful testimony.

Another barrier to a juvenile defendant’s ability to present a meaningful defense is the fact that attorneys and judges tend to treat juvenile defendants differently than we treat child victims. We take a gentler approach to youth victims than alleged perpetrators. For instance, some courts have held that underage victims cannot be asked leading questions on cross-examination. An argument can be made that this same protection should be given to child defendants since their development is no greater than that of a child victim’s of the same age. There is a tendency to assume that a juvenile defendant is more mature than a child of the same age who has been a victim. This is also reflective of our tendency to forget that many juvenile defendants have themselves been victimized at some point in their lives and may be struggling with issues similar to a child victim.

The Role of the Courts

Judges have a duty to ensure that defendants’ due process rights are not violated. This duty also applies to juvenile proceedings. Federal Rule of Evidence 611 addresses the mode and order of interrogation and presentation. Rule 611(a) specifically addresses the control the court is to exercise over the examination of witnesses, stating “The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment.” Fed. R. Evid. 611(a)

Under Rule 611(a)(1) juvenile court judges arguably have a duty to ensure that the method of cross-examination is effective for ascertaining the truth from a juvenile defendant. If the prosecutor is unnecessarily attacking or aggressive, leading the defendant to shut down or lash out, the court has a duty to instruct the prosecutor to refrain from being antagonistic so that the defendant is able to give truthful testimony. The court should also pay attention to whether the examination is only serving to confuse the defendant. If this is the case, steps should be taken to adjust the examination and course of proceedings to better fit the defendant’s development. The court can also utilize subsection 2 of this rule if the method of cross-examination is only serving to cause the defendant to strike back at the prosecutor instead of answering the questions, as this only serves to waste time and does not further the truth finding process. Finally, if the prosecutor is using cross-examination as a way to harass or embarrass a juvenile defendant, the court should not hesitate to turn to Rule 611(a)(3) to address this abuse and take steps to protect the defendant and his or her right to present a meaningful defense.

The Role of the Defense Attorney before and During Trial

It is ultimately the role of the juvenile’s defense attorney to protect the juvenile from impediments to his or her due process right to present a meaningful defense. A juvenile client’s development and maturity should be kept in mind at every stage of representation.

A juvenile client’s development should be considered when reviewing discovery, in particular police interviews or interrogations of the client. When reviewing police reports the totality of the circumstances of the interrogation and the impact the interrogation method could have had on the juvenile needs to be considered. The defense attorney should ask whether protective measures for the child were ignored or undermined. For instance, was the youth permitted to have his or her parent present during the interview? Was the child permitted to talk with his or her parent? Did this lack of contact with or presence of the parent place undue pressure on the juvenile to give a confession? Most children are taught to respect authority figures, including law enforcement officers. Given the type and amount of pressure put on a juvenile, he or she may believe that they have no choice other than to tell officers what they want to hear. This may especially be true if the child or adolescent is told “if you don’t tell the truth you will be in trouble and will have to go away for a long time,” or “if you tell the truth you can go home.” Both of these statements place undue pressure on a young suspect to give an officer the answer he or she is looking for, regardless of whether that answer may be true. If when looking at the totality of the circumstances surrounding the interrogation it appears as though undue pressure was placed on the juvenile defendant, then her or his attorney should raise this issue with the court in an effort to suppress the statements all together or limit the weight the court gives to them.

Juvenile defense attorneys should also scrutinize any waiver of Miranda rights given by their young client. If a juvenile does not understand his or her Miranda rights, or what they are giving up by waiving them, then any confession or statement was arguably not given freely. If a client does not understand that he or she can request an attorney and can have one appointed if their family cannot afford one, that his or her statements can be used against them in court, or that she or he could end the interview at any time, then voluntariness of any statement or confession is an issue that should be raised as part of a meaningful defense.

In the context of trial, defense attorneys need to raise the issue of any developmental concerns with the court at the first sign of a potential issue. To do this attorneys need to be as familiar as possible with their client’s cognitive, emotional, and social abilities, as well as their background and if they have been through the juvenile court system before. If there is a concern about a client’s development and age hindering his or her ability to present a meaningful defense, such an issue needs to be addressed to provide them a reasonable opportunity to understand the proceedings.

If the decision is made that the juvenile defendant will testify in her or his own defense, their attorney needs to take special care to ensure that the client has a good understanding of how the trial will work and the roles of everyone involved. As part of preparing a client to testify, attorneys need to practice not only direct examination, but also cross-examination. One of the most important aspects of witness preparation with juvenile clients is making sure they understand that it is acceptable for them to state that they do not understand a question or do not know the answer to a question. This may help to alleviate some of the pressure a young witness may feel to give an answer even if he or she does not understand the question or does not have an answer to give. Such preparation will hopefully help the defendant’s comfort level when being examined by the prosecutor, and reduce the likelihood that he or she will shut down or lash out during their testimony.

As with any court proceeding, it is imperative that the defense attorney create a record of any events that occur and treatment of the defendant during trial. In the case of an overly antagonistic prosecutor or a harassing method of cross-examination, the defense attorney may need to add narration to the record in order to preserve the issue of whether the defendant had an opportunity to present a meaningful defense for appeal. For instance, the record may read as though a prosecutor asked, “you told the store’s manager that you did not steal anything, didn’t you”; however the black and white transcript does not relay the prosecutor’s tone, whether she or he was yelling, or the prosecutor’s physical proximity to the defendant. In such instances the defense attorney will need to specify the conduct that needs to be corrected when objecting, or asking that the record reflect a detailed account of the prosecutor’s conduct in order to create an accurate record.

Conclusion

One of the aims of our juvenile court system is to rehabilitate children and adolescents who are found to have violated the law in some way. In order to carry out this goal without violating juveniles’ rights, their right to present a meaningful defense must be preserved. In order to do this, judges, prosecutors, and defense attorneys must ensure that they are cross-examined in a developmentally appropriate way.

How Attorneys Can Best Utilize Parent Partners to Achieve Better Outcomes for Parents

How Attorneys Can Best Utilize Parent Partners to Achieve Better Outcomes for Parents
How Attorneys Can Best Utilize Parent Partners to Achieve Better Outcomes for Parents

Kristina Guerrero-Sisneroz, J.D. | 07/11/2011

In October, I went to Austin for the Achieving Equity for Children and Family Conference put on by the National Association of Counsel for Children (NACC). It was my first time in the “WEIRD” city of Austin, but it was a life-changing experience.

In one brief article, I can really only focus on one topic, so I want to focus on the one that really pulled my heart strings - Parent Partners. In this session, Diane Boyd Rauber, M.Ed., JD, spoke about How working with parent partners can help achieve better case outcomes for families and she also wrote an article in the NACC Manual to go along with the lecture (Diane Boyd Rauber, M.Ed., JD, How working with parent partners can help achieve better case outcomes for families, Achieving Equity for Children and Families, NACC Law Manual, 57-61(2010)).

When I listened to this lecture, I had worked with a few Parent Partners, but I really did not know what a Parent Partner was. I would learn through this lecture that Parent Partners were former adjudicated parents who have been in the system previously and had a successful outcome (Seasoned attorneys, please forgive me for the explanation).

Two Parent Partners shared their stories about what their experience in the “system” was like. The first parent was a father whose children were in the system because their mother was a drug user. There was really no reason he could not have his children, but he had to fight and fight to get his children out of foster care. His main frustration was that no one would listen to him; he got the run-around from the caseworkers and from the lawyers.

The second Parent was a mother who was a victim of domestic violence. She told her story of losing her children and going into a DV shelter. It took her quite a long time to get her children back and she also spoke of the frustrations in court and never getting answers to her questions.

By the end of both parents’ stories, there was not a dry eye in the room. Both parents expressed how they felt hopeless at times. Both parents talked about just wanting ONE person to listen to them and to help them through the process, they felt like they were in the battle alone. Both of them became parent partners in an effort to help other parents get through the system.

Diane Bauer encouraged attorneys to do the following to utilize Parent Partners for successful outcomes in our cases. Parent Partners can give parents hope and a feeling that they can possibly succeed. The theory is that the Parent Partner, who is sharing their story of success with the clients, can help clients understand the court process, what things they need to do and not give up.



Diane suggested the following:

First, obviously, we need to get a Parent Partner assigned to our case.

Second, we need to “friend” parent partners and treat them as professionals.

The theory behind this is that these Parent Partners were successful in their own case and they have been extensively trained.

Third, we need to meet our Parent Partners and establish roles and expectations. This includes distinguishing between the attorney or GAL role and the role of a supportive Parent Partner.

We need them to advocate for the parents, but we need to be the ones giving the legal advice.

Fourth, we need to communicate with both the client and the Parent Partner.

Communicating with clients is our ethical duty and it paves the way for success.

Sometimes a Parent Partner can get us information we need, such as a phone number or new address.

Fifth, do not rely on your Parent Partner to do your job or do the caseworker’s job.

Use the Parent Partner as an extra set of hands, but they are not trained to do an attorney or caseworker’s job (an example was not having them supervise visits).

Sixth, determine whether courtroom involvement is appropriate.

Many times the Parent Partner will accompany the parents to court, but there could be potential conflicts (such as the Parent Partner having information that could be used as testimony and possibly violating confidentiality issues).

Seventh, offer to train Parent Partners

As parent attorneys, we can have valuable insight to share with Parent Partners, you can help them avoid conflicts!

Diane Bauer then focused on what attorneys can do to have more successful outcomes. Attorneys need to spend more time working with parents effectively. In summation, effective representation includes: not being judgmental, communicating, making an effort to ensure your client understands paperwork, meeting with your client before court (more than a few minutes prior), not leaving parents alone in the courtroom (as it is scary), being prepared for court, and helping your client access services.

All of Diane’s suggestions are “no-brainers”. However, as attorneys, we often get caught up in the rush of our practice and going from one case to the next. We need to remember that we are dealing with real people and real families. We, as attorneys, probably cannot relate very well to the parents in the system. We go into court knowing “the ropes”. Parent Partners understand that fear and confusion. I believe that Diane Bauer had some great points and as I left Austin I was refreshed and hopeful that we as attorneys can help our clients feel like there is hope and we will see better outcomes.

Remembering the Impact of Trauma When Counseling Children

Remembering the Impact of Trauma When Counseling Children
Remembering the Impact of Trauma When Counseling Children

Elizabeth Ferrebee, J.D. | 05/04/2011

In the previous spotlight issues, Krista Shaul, J.D. and Maxie Morgan, J.D. discussed in detail the impacts of trauma on the brain and how it affects the children with whom we work. It is hard to deny the profound impact trauma has on the children in the legal system. While learning about the effects of trauma while attending the 33rd National Child Welfare, Juvenile and Family Law Conference, I found myself constantly reflecting on the children I represented and how I could carry what I was learning into my practice.

During a presentation titled “Trauma Informed Legal Systems: A New Paradigm for Understanding and Reaching Children’s Troubling Behavior,” presenters Jim Henry, Ph.D., Mark Sloane, D.O., and Frank Vandervort, J.D. C.W.L.S. provided the audience with essential elements to use when incorporating the concept of trauma into the legal system. These elements are as follows:

  • Support and promote positive and stable relationships in the life of the child
     
  • Maximize the child’s sense of safety
     
  • Child services should be guided by a comprehensive assessment of the child’s trauma experiences and the impact on behavior and development
     
  • Assist children in reducing overwhelming emotion
     
  • Help children make new meaning of their trauma story and current experience
     
  • Address impact of trauma and subsequent changes in the child’s behavior, development, and relationships
     
  • Provide support and guidance to the child’s family / caregivers
     
  • Coordinate services with other agencies
     
  • Manage professional and personal stress

These elements provided the framework to begin a slight change in my practice. To accompany this framework, I brought in some other lessons learned at the conference, and also have added a few things which I have done over the past six months.

First, as you become informed about a child’s trauma history, it is important not only to learn about the traumatic event that brought the child into the legal system, but also to be open and aware of other incidents of trauma the child may have had prior to being introduced to the legal system. Also, when representing a child who has been placed in the system due to supposed law violations or for being wayward or habitually disobedient, it is important to recognize any prior trauma that may have led to the current behavior. If the prior trauma is not treated, the child may continue the reckless behavior.

Identifying previous traumas may be challenging, particularly when most youth within our care are already guarded and unwilling to trust adults. For this reason, it may be important to seek a trauma-focused mental health assessment. The Southwest Michigan Children’s Trauma Assessment Center uses trauma checklists at initial intake to gain a better understanding of the child’s history. By knowing the child’s history, we are better able to know the child needs and ensure a more positive future.

Although I do not use the checklist directly, I have found it useful as a guide when getting to know the children I represent. I find it much less intimidating to allow the information to come out in conversation as we build trust, instead of going through the master list. With a more conversational approach, my clients are less nervous and in turn, conversation becomes more open. When implementing this method, it is important that the list is not something that is filled out and then stowed away because often more information will emerge as the child gains your trust.

When initially receiving a case, I speak to a caseworker, parent or foster parent to learn about the child’s personality, current interests and obtain some basic information about the situation. Once this is done, I can develop an interview strategy based on that particular child. It is important when entering the interview to remove any biases from the reports or prior conversations; after all, I don’t have the entire story. I also remember when talking to the youth that I am a stranger and they have no reason to trust me, and therefore, I need be patient and give them time to trust me.

At the conference, it was recommended to look to other sources for information regarding the child’s history and other possible traumas. I have found this particularly useful. For example, a call to the school for basic history may reveal that the child has been moved multiple times between school systems. This fact may not have otherwise been noted because school problems were not part of the initial intake. Even though this was not part of the initial intake, the multiple moves may have provided additional trauma and affected the child’s development.

One of the greatest challenges I have found using a trauma informed system is when other adults in the support system are not looking at the situation through the same set of lenses. It is not uncommon to see what appears to be an adolescent not working to help themselves or even worse, acting out after a period of calm or improvement. Unfortunately, it also is not uncommon to find during these periods, the adults involved implying that the child is a hopeless case. It is during these points of frustration key questions should be asked: Has something happened that the child is responding to? What have we as a support team done to provide services in order to cope?

It is important to remember what may be a small event to us adults may be providing additional trauma to the child. For example, it may be easy for parents or caseworkers to say that a younger sibling running away from the parents’ home did not directly affect the sibling placed in foster care; however, this event may be exceptionally terrifying for the youth looking at the return home without the comfort of the younger sibling. Similarly, spending Christmas without the abuse of a parent and with a caring foster care family may seem like an improvement, but it will not remove feelings of abandonment when the child goes without family contact at the holidays. It is important to recognize both the major and minor events impacting the youth’s development.

After pinpointing a possible traumatic event, we need to be able to also identify additional services provided for the youth if we expect them to continue progressing. If we are not assured that the youth was provided the additional support needed during the event, then we should not criticize the youth for regressive behavior. This is not to say that we should not acknowledge that the behavior was inappropriate. Rather, instead of declaring the child hopeless, we need to move forward with a positive attitude, providing assistance and coping mechanisms to ensure the child’s mental stability is protected.

Although my process is far from perfect and continues to develop with time and experience, I am finding that remembering the impact of trauma has provided my clients with an added benefit. By considering a child’s complete trauma history, we are forced to look beyond the immediate concerns that brought the child into the system initially. Through understanding the impact of additional trauma, we are better able to understand and adapt to the reactions of ongoing trauma. Most importantly, by looking at both a trauma history and by reacting to any ongoing traumas, we are better able to provide the services necessary to ensure positive development for children of trauma.

Improving the Treatment, Care, and Success of Nebraska's Children Through the Neurosequential Model of Therapeutics

Improving the Treatment, Care, and Success of Nebraska's Children Through the Neurosequential Model of Therapeutics
Improving the Treatment, Care, and Success of Nebraska's Children Through the Neurosequential Model of Therapeutics

Krista Shaul, J.D. | 04/01/2011

Chances are, at some point during a juvenile case, a child under the Nebraska Juvenile Court jurisdiction will participate in some kind of therapy or treatment. Some therapy addresses trauma the child has been subjected to soon after the trauma has occurred. Other therapy works on behavioral actions of the juvenile, which in all likelihood are precipitated by and are also a result of trauma. Traditional therapy, the kind thought of when the words “counseling” or “therapist” are mentioned, can be helpful to a child, but only with the right child at the right time. There are numerous success stories based on therapy a child has participated in; however, with Neurosequential Model of Therapeutics (NMT), the success of the treatment and care of Nebraska’s children will vastly improve.

The Science Behind the Method

The brain, along with the experiences a person has and is subjected to makes a person who they are. The brain rapidly develops prior to being born and up to age four. The brain is responsible for every action and thought we do and have. Synaptic connections are the physical connections between neurons, and with continued, repetitive use, the synaptic connections increase and strengthen. If synaptic connections are not used, they will decrease or even disappear. The development of the brain is a sequential process. The lower, more regulatory part of the brain develops first. The brainstem which controls the heart rate, body temperature and other survival-related functions is the first to develop, followed by the diencephalons, limbic, and neocortex portions of the brain. The higher parts of the brain control the complex functions of language and abstract thinking. The brain also organizes from the inside out.

Under normal circumstances, normal stressors will help the brain develop the capability to respond to stress. Children who experience abuse, neglect, unstable homes or other trauma will have negative effects on their brain when they experience the same normal stressors. The more extreme and tragic traumatic events will result in more severe and chronic damage to a brain, as well as cause a greater resistance to improvement and treatment. Neural systems formed while under trauma or abnormal stress develop in such a way that traditional therapies alone cannot provide a meaningful and sustained change in the child’s behavior and affect the child’s emotional, behavioral, cognitive, social, and physical behaviors.

If portions of the brain are underdeveloped or not developed at all, subsequently developing parts cannot be developed until the initial portions are developed. In other words, when a traumatic event prevents a lower part of the brain from developing appropriately, the upper parts of the brain will not develop until the lower part has been remedied.

There are ways to repair a brain that has been exposed repeatedly to trauma and stress in the early developmental stages. Exposing the child repeatedly to positive influences and appropriate therapeutic techniques will assist in repairing the brain and will help the underdeveloped parts of the brain develop.

Human beings are innately social creatures and crave social interaction. The brain depends on relationships with other people. Spending time with positive loving friends or family will mimic and stimulate the reward systems in a brain.

The Method

Dr. Bruce Perry, MD, Ph.D., presented at the NACC Conference on the Impact of Trauma on Brain Development and the Neurosequential Model of Therapeutics (NMT) technique. NMT maps the neurobiological development of maltreated children. NMT is not actually a therapy technique, but rather gives additional information and guidance to determine which specific therapeutic techniques would be most beneficial to a child. NMT assesses a child, identifies the child’s problems and strengths, and suggests appropriate treatment that will best meet the needs and goals of the child. The basis behind NMT is that a child’s behaviors can be changed by changing the actual makeup and development of the brain.

NMT starts with an in-depth review of any stressors or traumatic events in a child’s life during the early development stages, especially prior to age four. The stressors are rated based on the severity and timing of their impact on the child. NMT then looks into how attached or vulnerable the child was during the early developmental times. Lastly, NMT provides a specific recommendation for how to approach the treatment of the child. Developmentally appropriate treatment techniques are recommended which will help address and cure any deficits in the brain. The goal of NMT is to mimic the normal, natural, sequential development of the brain. NMT also looks at the current relationships between the child and individuals in the child’s life, as the more stable and positive the relationships a child has, the more a successful outcome can be predicted.

An actual map of the child’s brain is printed out, looking somewhat like a reverse or upside-down pyramid. The brain map not only indicates which portions of the brain are developed, but also how functional or developed each portion is. The map is a visual depiction that is used to plan for treatment and also helps track the progress the child makes through their therapies and treatment.

Implementing the Method

One therapeutic contact per week is not sufficient to give the child the opportunity to repair or grow the years worth of damage done by trauma and stress at the pivotal time the brain was developing. Merely increasing the hours or times of traditional therapy will not be sufficient. Rather, it is necessary to focus on the kind and timing of therapy offered to the child. It will be necessary for more ‘repair’ or therapeutic work to be done the younger the child at the time of the trauma or stress.

Dr. Perry lays out four keys to successful treatment. First of all, the therapeutic treatment provided to the child must match the child’s developmental abilities in each of the following domains of function: social, emotional, cognitive, and physical. Second, the therapeutic treatment must be provided in a safe and predictable situation and location for the child. Third, there must be repetition of the activities in order for a change to actually occur, and the repetition must be over an extended period of time. Fourth, there must be some ‘element of reward’ contained in the therapeutic treatment for the treatment to be effective.

One of the most important kinds of therapies used in these situations is a mentoring type relationship. Increasing the amount of positive interaction a child has with an adult is vital to building the brain and improving behaviors. Even one hour a week of mentoring can provide the relational stability necessary to help mitigate the effects of trauma.

Why the Method works

When NMT is implemented, individuals involved in the treatment of a child can better understand the development of the child’s brain. When the development of a particular child’s brain is understood, a treatment plan can be specifically and individually created and implemented for the child. The child will receive treatment and therapies that will be effective and developmentally appropriate and will remedy the underdeveloped or non-developed portions of the child’s brain which will in turn change the child’s behaviors. Traditional behavioral therapies do work, however they only work on the right child at the right time.

Traditional treatment plans focus on the current actions of the child or why they are behaving the way the are. NMT focuses on what happened in the past and what is missing because of the past occurrences. In other words, the best therapy with the best therapist will have no effect on the child if the child is not developmentally at a stage to be receptive to the therapy. The child must be brought through the proper treatments to properly and fully develop the brain before the next level or stage of treatment and development is initiated.

The key behind NMT is that there is no specific therapeutic technique that works with a child. Rather, with the additional information provided during the NMT assessment, the proper person working with the child on the proper treatments can have a high rate of success. Implementing NMT for children under the jurisdiction of the Nebraska Juvenile Courts will allow the children a better chance at fully remedying the negative effect trauma and stressors had on the child’s brain development. The appropriate treatments will be used at the appropriate time, preventing the system from needlessly getting nowhere in the actual treatment of the child, wasting precious time, or excessively spending the dollars we all know are so limited. Ultimately, the child can hope for a full treatment, which results in a lifetime of success, and that is most certainly in the best interest of the child!

Recognizing and Responding to Traumatized Children in the Juvenile Justice System

Recognizing and Responding to Traumatized Children in the Juvenile Justice System
Recognizing and Responding to Traumatized Children in the Juvenile Justice System

Maxie Morgan, J.D. | 02/02/2011

Nearly eighty percent of abused children have faced at least one mental health challenge by age 21.1 Eighty percent is astounding, but when I consider my own juvenile clients individually, I believe it. While I would not preach to memorize numbers, this is one statistic that ought to be known by anyone involved with the juvenile justice system, including attorneys, guardians ad litem, caseworkers, foster parents and judges. Such a mental health challenge may very well be the symptom of childhood trauma.

What is trauma?

Trauma is a psychologically distressing event that involves a sense of intense fear, terror and helplessness.2 Examples include child abuse or neglect, witnessing violence, being a victim of violence, natural disasters, war and terrorism, accidents, medical diagnoses, and severe grief.3 Child traumatic stress is the response to such a psychologically distressing event and can affect a child’s capacity to cope, ability to trust others, sense of personal safety and effectiveness in navigating life changes.4 Other stressors common for children involved in the juvenile justice system include poverty, discrimination, separation from parents and/or siblings, unstable housing or schooling, and refugee or immigrant status.5

What are the types of trauma?

Trauma may be acute (a single traumatic event), chronic (multiple traumatic events) or complex (exposure to chronic trauma along with the resulting impact on the child).6 The impact of a potentially traumatic event is very subjective; what may be traumatic to one child may not be traumatic to another. When I stop to consider these types of trauma, I realize that it is not only the children who have experienced significantly high rates of trauma, but often their parents and caregivers as well. Several factors can influence the impact of a potentially traumatic event, including: (1) the child’s age and developmental stage; (2) the child’s perception of the danger faced; (3) whether the child was the victim or a witness; (4) the child’s relationship to the victim or perpetrator; (5) the child’s past experience with trauma; (6) the adversities the child faces following the trauma; and (7) the presence or availability of adults who can offer help and protection.7

How do I recognize trauma?

To recognize trauma, watch for affective symptoms such as fear, sadness, anger, anxiety, depression, physiological stimulation, emotional distress and difficulty in soothing oneself.8 Also be aware of cognitive symptoms such as irrational beliefs, blaming oneself, distrust of others, distorted self-image, or accurate, but unhelpful, cognitions.9 Behavioral symptoms of trauma may include avoidance of thoughts, feelings or places, sexualized or violent behavior, associating with an aggressor, substance abuse, self-injury, or suicidal ideations.10 Children in the child welfare system are commonly diagnosed with reactive attachment disorder, attention deficit hyperactivity disorder, oppositional defiant disorder, bipolar disorder and conduct disorder.11 Many children with such diagnoses have a complex trauma history, although these diagnoses generally do not identify the full extent of the developmental impact of trauma. 12

How does trauma affect child development?

Trauma can affect the brain differently at various points in development. It can hinder coordination, communication or academics. Young children who have experienced trauma may be passive, quiet or easily alarmed, or on the opposite extreme, may display aggressive outbursts.13 I have had clients on both ends of the spectrum. They may be fearful of new situations or experience separation anxiety or suffer from night terrors. Particularly in cases where a parent or caretaker is the aggressor, children may be confused about assessing a threat and also finding protection.14 Young children may also regress to recent behaviors such as bed-wetting, crying or baby talk. 15

The development of traumatized school-aged children may cause unwanted and intrusive thoughts and images, or preoccupation with past distressing events.16 They may develop intense new fears linked back to the trauma.17 Sometimes school-age children will alternate between shy and withdrawn behavior and unusually aggressive behavior.18 They may seek revenge.19 Their fear of recurrence may become so intense that they avoid previously enjoyable activities.20 Sleep disturbances may also interfere with daytime concentration and attention.21

Adolescents responding to trauma may feel that they are weak, strange or going crazy22. Anxiety, depression, intense anger, low self-esteem and helplessness are common feelings.23 They may also be embarrassed about their fears or exaggerated physical responses.24 Adolescents who have experienced trauma often feel unique and alone in their pain.25 Such trauma reactions may cause aggressive or disruptive behavior, and expectations of maltreatment or abandonment.26 Sleep disturbances may be masked by studying or watching television late at night or partying.27 Many traumatized teenagers use drugs or alcohol as a coping mechanism to deal with stress.28 Danger may be over-estimated or under-estimated and they have an increased risk of re-victimization.29

What can I do?

Anyone involved with juveniles in the child welfare system can work to reduce system-related stress by recognizing that interventions by child protective services may either increase or decrease the impact of trauma. Professionals can help minimize the risk of system-induced secondary trauma by alleviating a child’s concerns. Trust must be developed through listening, frequent contacts and honesty.30 However, professionals need to avoid repeated interviews regarding a traumatic event. I have had cases where children meet with a caseworker, a guardian ad litem, a court-appointed special advocate, parents, foster parents, teachers and therapists. To repeatedly explain a traumatic event to everyone involved may be damaging for the children and have the unintended result of exacerbating the trauma impact. A possible solution is for the professionals to obtain information from the children’s therapist, not continuously from the children themselves, and to direct the children to speak to their therapist, unless they want to share with other professionals involved. That way, the children do not have to repeat their stories over and over, potentially reliving the trauma.

The focus should be on utilizing adaptive coping mechanisms and maximizing a child’s sense of safety, as safety is critical for functioning and growth.31 Professionals need to know that many challenging behaviors are not simply because the child is “being bad,” but may have been adaptive for the child in the past in responding to trauma.32 For example, neglected children may act out at school, seeking attention, if they do not receive the attention they need at home. It is not necessarily because they are deliberately “being bad,” but because they may have disinterested and uninvolved parents and acting out is a behavior through which their needs are met.

Those involved with children in the juvenile justice system should support permanency by evaluating possible long-term placements at the beginning of a case, not the end.33 I have had cases where children have been with the same foster family for 18 months or more and social services then searched for and located relative placements, and wanted to uproot the children simply to be with family. The result could be a potentially traumatic, broken bond with the foster family and not necessarily in the children’s best interests. The best practice would have been to search for relatives at the beginning, so a relationship between children and their extended family could be fostered while their cases were pending.

Permanent caregivers also need access to the support and services that will enable the child to heal. Any mental health assessments or treatment should be trauma-focused and should include caregivers in treatment, educating them about the impact of trauma on a child’s development.34 Children need reminded that they are not at fault for their involvement with child protective services. Remember, whatever the statistics may be, exposure to trauma or other “mental health challenge” for children in the juvenile justice system is the rule, not the exception.

Parents Plans: Giving Parents a Voice in Court

Parents Plans: Giving Parents a Voice in Court
Parents Plans: Giving Parents a Voice in Court

Matthew Headley, J.D. | 01/06/2011

INTRODUCTION

I am a Nebraska fan and have been one my entire life. After the Husker’s heart-breaking loss to Texas a week before I went to Austin for the Achieving Equity for Children and Family Conference put on by the National Association of Counsel for Children (NACC), I was a little reluctant to tell anyone that I was from Nebraska. However, by the end of the conference, I had learned that no matter if you wear the burnt orange or you are part of the Big Red, children, parents and the juvenile system are similar all over the United States.

IN THE BEGINNING

I went to this NACC conference with high hopes of learning many things that I could take back to Madison County Public Defender’s Office, where I am employed, as well as to the attorneys in the Madison County Bar. I had high hopes of absorbing everything and being ready to “hit the ground running” when I returned to Nebraska to implement these ideas to make the juvenile system work 100% better for my clients and everyone involved in the juvenile system. This was not meant to be, as was explained by one of the presenters, Robert Schwartz. He explained that most people come to these conferences with the same expectations that I had: radical change and a million good ideas that we were going to implement upon our return home. Mr. Schwartz went on to explain that it is difficult to “break out of our silos” and implement these millions of ideas. He challenged the group to focus on one or two ideas that really had caught our attention. Mr. Schwartz concluded that by focusing our efforts and resources on these few good ideas, the chances of implementing them increase and allows everyone involved to stay motivated. With that message in mind, I looked at my own work at the Madison County Public Defender’s Office and made a decision to focus on the rights of parents involved in the Nebraska juvenile system.

THE PLAN

As is referenced in Neb. Rev. Stat. § 43-246, the Juvenile Code provides a judicial procedure through which the purposes of the juvenile code are accomplished and in which the parties are assured a fair hearing and recognition and enforcement of their constitutional and other legal rights. I regularly make reference to this section of the Juvenile Code when representing parents to make sure that parents are zealously represented in the juvenile court here in Madison County.

A number of different breakout sessions during the NACC conference made indirect references to the above mentioned Nebraska Statute. There were numerous discussions about Parent to Parent, a program where parents that have been previously involved in the juvenile system help out parents currently involved in the juvenile system. Other sessions dealt with how to provide the parents a voice at dispositional / review hearings. This information gave me an idea to bring back to Nebraska for implementation in Madison County.

My plan started with a discussion about providing the court a report from the parents at a dispositional / review hearing just as the Department of the Health and Human Services (DHHS) provides a report to the court for those same hearings. There is nothing in the Nebraska Statutes that would deny such a document from entering into the dispositional / review hearing. It would give the parents a chance to inform the court of their own progress in regards to the goals and strategies set forth by DHHS and suggest additional services that need to be offered to parents and child(ren).

In addition, the document would give the court a showing of action and active involvement of the parents. Most parents, in the eyes of the Judges and State, are all talk and no action. Giving the parents a plan that they prepared, with the assistance of their attorney, will give them something to work towards that is not only for their own wellbeing but for the best interest of their children.

IMPLIMENTING THE PLAN

The above plan is all well and good in theory, but it does not mean anything until it is implemented in real life in the Madison County court. As I mentioned in the beginning of this article, implementation requires getting individuals who are stuck in their ways to move “outside of the silo”. And I fully understand that I am included in that collection of people. I also understand that I will have to persuade others, including the Judge and county attorney, to implement this plan.

The first issue is getting this parent’s plan in front of the Judge and into evidence at a dispositional / review hearing. As the rules of evidence do not apply in juvenile dispositional / review hearings and are merely guide posts, offer and receipt of the parental report should not be an issue. Of course, if the parents have objections to the case plan prepared by DHHS, an objection will need to be filed and evidence presented by the parents to get DHHS’ plan changed. However, if parents just want to add some additional facts that they feel are important for the court to be aware of, then this parental report is the proper strategy.

The next issue is convincing the court to not just have the parents testify at the dispositional / review hearing to the facts contained in the parental plan. That issue is really just for future hearings as if that testimony is needed, a transcript will need to be ordered and submitted. Asking the court to take judicial notice of a prior exhibit, or even re-offering that exhibit, will be a better use of time and will provide the court with the same information as live testimony. It also keeps the parents off the stand and keeps the other parties from cross examining them.

Finally, the parental plan needs to be used with clients who can follow through and just need some additional motivation to get working on the DHHS plan. The parental plan can easily backfire for a parent who is not taking action or is looking towards a termination in the near future. Not following his / her parental plan will give the State and guardian ad litem more firepower in the termination or dispositional / review hearings. Thus, care must be taken to make sure that I pick out appropriate parents for this plan so I will not be setting them up for continued failure or problems down the road. This is not a plan that should be implemented for all parents involved in the juvenile court system.

CONCLUSION

The 2010 NACC conference was very informative and gave me plenty of ideas that I can bring back to Nebraska and Madison County in order to help the parents involved in the juvenile court system. The plan is to implement a “parental plan’ to submit to the court at dispositional / review hearings. This parental plan will give parents a regular voice during those hearings and allow them to get more involved in their cases. This is the major idea that I hope to implement to continue my zealous representation of parents in the Nebraska juvenile system.

An Analysis of the Implementation of the Fostering Connections Act into the Nebraska Juvenile Justice System

An Analysis of the Implementation of the Fostering Connections Act into the Nebraska Juvenile Justice System
An Analysis of the Implementation of the Fostering Connections Act into the Nebraska Juvenile Justice System

Nicholas Wurth | 06/04/2010

INTRODUCTION

In the relentlessly changing world of Nebraska juvenile court practice it is difficult to keep up with the evolving case law, yearly statutory changes, seemingly frequent audits/studies of the “system,” HHS policy amendments, and the effects of Federal laws on all of the above. A reminder all practitioners should find unnecessary is that the Juvenile Court is a civil court, and as a result, accountability and enforcement of the varying laws and policies are, in the end, achieved through the deprivation or limitation of the money received from the federal government to fund all of the programs and services necessary to families in need of state assistance. In other words, if a juvenile court judge enters an order indicating that certain federally mandated steps or procedures were not followed for a particular family, Nebraska’s state child welfare agency – the Nebraska Department of Health and Human Services (HHS) – is not likely to receive federal funding to reimburse the expense of providing certain services to that family. The end result is that HHS has a strong incentive to implement any new federal law affecting child welfare service funding immediately into existing policies and procedures. For attorneys, knowledge of what the federal government requires of states wishing to receive funding for child welfare services is a useful tool for those that believe that a client or family is not receiving appropriate attention or services through the life of a juvenile court case. While HHS and its case managers routinely do a remarkable job in ensuring necessary services are timely implemented and delivered to families in need, there are instances where families do not receive necessary, and many times, federally mandated assistance, and it is the duty of attorneys to bring those instances to the attention of the juvenile court judge immediately.

This article will address Nebraska’s response to certain provisions of the Fostering Connections to Success and Increasing Adoptions Act of 2008 as they relate to defending parents and children that have been adjudicated under Neb. Rev. Stat 43-247(3)(a). Furthermore, by breaking down each requirement into three broad categories, the article will not only outline the relevant black-letter laws and codes, but identify those areas lacking in oversight and attention. Through the diligent and informed defense of families, Nebraska juvenile and family law attorneys can play a role in shaping policy to conform to federally mandated standards while assisting on individual cases in the successful reunification of children with their parents. By and large, HHS and its employees are remarkable assets for ensuring children and families receive the services necessary to become successfully reunified. However, there are instances where, despite best intentions, case managers either fail to abide by existing policy, or the policy in and of itself simply does not go far enough in providing necessary assistance for families. By holding HHS individual caseworkers accountable for abiding by existing policies and procedures, attorneys can help highlight those areas where individual case management may not be conforming with the established procedures and those areas where established procedures may not ultimately be serving the best interests of the child.

BACKGROUND

The Act
The Fostering Connections to Success and Increasing Adoptions Act of 20081 (”the Act”) was signed into law by President George W. Bush on October 7, 2008 after receiving overwhelming support from the House of Representatives and unanimous support from the Senate. The Act revised and extended the Adoption Incentives program under the Social Security Act, established a myriad of financing changes, and added new requirements for states wishing to receive federal child welfare reimbursement. The Act’s requirements, set out in more detail in the December 2009 Spotlight Issue article by Natalie Nielsen2, mandate that state child welfare agencies comply with seven key directives, briefly restated and summarized:

  1. Provide assurance that each school-age child receiving federal foster care, adoption, or guardianship assistance is enrolled in school;
     
  2. Work with other appropriate public agencies to reduce unnecessary school moves for all children in foster care and, to coordinate and ensure access to health care – including mental health and dental care;
     
  3. Make reasonable efforts to place siblings together;
     
  4. Notify adult relatives of children entering foster care of their options to participate in the care and placement of the child;
     
  5. Develop a specific plan for a youth’s transition to independent living no more than 90 days before a youth’s “aging-out” of foster care;
     
  6. Negotiate in good faith with Indian Tribes requesting to receive federal funds for Indian children for whom the tribe provides foster-care, adoption, or guardianship assistance;
     
  7. Inform prospective adoptive parents of foster children of their eligibility for federal adoption tax credit.

While the requirements of the Act are set out plainly in the federal law, without its codification into the Nebraska Juvenile Code, it is unclear how the requirements have been or will be implemented in Nebraska. The last three provisions: negotiating in good faith with Indian Tribes, informing prospective adoptive parents of potential tax credits, and developing a transition plan for youths about to age-out of foster care, while equally important, are not routine to daily practice in juvenile court. However, the remaining requirements are likely relevant to every case adjudicated under Neb. Rev. Statute 43-247(3(a)). Summarized in the categories of (1) School, (2) Placement and (3) Family notification, this article will address common problems, questions, and potential solutions for parent and child attorney’s attempting to hold HHS and its representatives accountable to providing the services the federal government has deemed necessary to successfully addressing the needs of children and families in the child welfare/juvenile court system.

HHS Guidelines and Codes

Prior to discussing the three main aspects of the Act in detail, it is worth briefly looking at the existing HHS policies that govern how Federal Acts are immediately implemented into existing procedures. HHS employees and their actions are internally governed by the Nebraska Administrative Code (NAC). Title 3903 of the NAC specifically relates to Child Welfare and Juvenile Services, and sets out the rules and regulations that case managers and other HHS employees must follow. In addition to Title 390, HHS publishes Guidebooks specific to certain case management aspects of child welfare cases that are to be utilized as tools and training guides for the HHS case managers in relation to the specific circumstances of a case. Specifically, the Out-Of-Home Placement and Payment Guidebook4lists a series of considerations that are taken into account prior to placing children in non-treatment level placements. Finally, HHS issues Administrative Memorandums to its staff whenever a policy or procedure is amended. The HHS Policy and Section Administrator, Ed Matney, issued Administrative Memo #8-20095 (”Memo 8-09″) to specifically address changes in HHS policy as a result of the Act. Memo 8-09, discussed in more detail below, was the first step taken by HHS to implement the requirements of the Act into HHS policies and regulations.

Many of these considerations as well as many of the policies outlined in Title 390 of the NAC are based off of federal requirements contained in the Social Security Act that predate the Fostering Connections to Success Act.6 The provisions of the Fostering Connections to Success Act are sure to overlap with some existing HHS policies and procedures. With the assistance of explanations provided by Administrator Ed Matney, this article will outline what may or may not be lacking in current HHS policies in relation to the three main aspects of the Act.

School

ISSUE: The first major area addressed in the Act relates to educational placement for children removed from their parents’ home. The Act contains two key provisions regarding school and education for children placed in the temporary custody of HHS pursuant to a juvenile court filing. The first provision is that all school aged children are enrolled in and attending school if those children are receiving federal funds to subsidize the cost of their care while temporary wards of the state. The second relevant provision requires that when children are removed from the parental home, that HHS work with the appropriate agencies to reduce unnecessary school moves for all children. The question is what steps must HHS take to ensure that children remain in their same school, and what, if any, circumstances would support a determination that changing schools would be in the best interests of the child.

CURRENT HHS POLICY: Prior to the Act’s implementation, 390 NAC Chapter 7, the chapter dealing with out of home placement of state wards, governed how school would tie into placement decisions. 390 NAC 7-000 and 7-001.02A, dictated that upon removal from the parental home, children should be placed in the least intrusive environment possible that is in the best interests of the child. This included provisions to provide school “continuity” whenever possible and to facilitate any changes with school officials. The passage of the Act necessitates the added requirement of keeping school continuity unless it was documented that to have the child remain in the same school would be contrary to his or her best interests. Memo 8-09 adopts the language dictating a child must remain in the same school unless it is contrary to his or her best interests. Interestingly, the Service Coordination Contract only states that the coordinator ensure that the child’s school district remain the same, rather than actual school. According to Ed Matney, 390 NAC is being revised to include both the language from Memo 8-09 and the Act ensuring that a child remain in the same school rather than just the same school district. Whether or not the revision takes place is largely a question of whether HHS brings its policies in line with Nebraska law. In the instance of school placement, the juvenile code already directly addresses and adopts the standards set out in the Act. Neb. Rev. Statute 43-1311(4) dictates that children remain in the same school unless it is determined that it is contrary to their best interests to do so. The existence of the mandate for children to remain in the same school they were enrolled prior to entering foster care supersedes existing HHS policy.

ANALYSIS: While HHS policy may not yet be explicitly in line with existing Nebraska law, the presence of the “best interests” language still indicates the need for clarification on what circumstances would actually dictate that changing schools is in the best interests of a child. Rare is the occasion that a child is removed from the parental home, placed in the same community, and there is a determination that it is in the best interests of the child to be removed from his or her previous school. School can and should be one of the constant, unchanging factors when a child is uprooted from his family home pursuant to a juvenile court filing. It is possible that competing interests dictate a move out of the school’s area to be in the child’s best interests, making a change in school an unfortunate necessity required to meet the other needs of the child. Transportation, however, should never be an issue in determining whether a change of school is necessary, as HHS and its contracted Service Providers contract with numerous transportation agencies that are capable of providing the service. If a situation arises where a child’s placement may disrupt due to a foster parent who cannot or will not facilitate transportation to school, the situation should be brought to the attention of HHS to instruct its service coordinator to set up transportation immediately before the situation causes disruption in placement or school. Just because a child is no longer in the neighborhood of his or her school does not mean it is reasonable to change schools. There are currently no concrete guidelines or examples contained in HHS guidebooks that illustrate what types of concerns may indicate that changing schools would be in the best interests of a child. Per Mr. Matney, upcoming revisions to HHS policy may contain some examples and guidelines while maintaining the flexibility for case managers to take individual situations into account. Ideally, those guidelines would indicate situations that should not be used to base a school change on, such as transportation. Finally, the guidelines and service contracts should expressly indicate that Nebraska law already requires children to be placed in the same school they attended prior to entering foster care unless it is contrary to their best interests.

Placement

ISSUE: The Act requires that reasonable efforts be made to place all sibling children together when they are removed from the parental home. HHS is already required to make reasonable efforts to prevent the children’s removal altogether pursuant to the Nebraska Juvenile Code and Federal Law. This new provision takes the issue of reasonable efforts one step further. After a determination that remaining in the home would be unsafe to the children, HHS must make additional reasonable efforts to place all of the siblings together. An issue will likely arise between the competing interests of finding safe, immediate placement and finding a placement that can accept all of the children. Another issue arises in situations where placing siblings together competes with placing children with non-custodial parents or other relatives.

CURRENT HHS POLICY: As mentioned above, 390 NAC Chapter 7 contains the Nebraska Administrative Code’s requirement regarding out of home placement of state wards. 390 NAC 7-000 provides that HHS consider the circumstances and “place the child in the least restrictive, family like setting; closest to the family to meet the child’s best interests and special needs; and in a setting that provides continuity for the child in school, church and other community relationships whenever possible while also considering the safety of the community.” Furthermore, the HHS Out-Of-Home Placement and Payment Guidebook specifically addresses the issue of sibling placement in a list of “other considerations” by stating that siblings should be placed together “whenever possible and appropriate.” Concerning expectations for placing siblings together in the same out of home placement, Policy Coordinator Mr. Matney indicated that the contracted service providers “are expected to have 92% of [the children placed out of home] placed with their siblings.”

ANALYSIS: Certainly, existing HHS policy places a great deal of importance on placing siblings together following a determination that the family home is unsafe. According to the latest data provided by HHS in its April 2010 Children and Family Services Review, 83% of the children placed out of home were placed with their siblings, down from 93% in January 2010.7 While the benchmarks are nearly being met, there seems be a lapse in policy directing the use of specific reasonable efforts to place children together. Admittedly, current HHS policy across the board is deliberately designed to afford its employees with the flexibility necessary to meet each case’s unique challenges. In addition, “reasonable efforts” can likely be inferred from the language contained in the NAC and Guidebooks, however, the inclusion of the affirmative duty to make reasonable efforts to place siblings together would emphasize the need for service providers to take extra efforts to ensure siblings are placed together without limiting the flexibility necessary to manage individual cases. For instance, if a situation arises where a foster home in the community is not immediately available to accept a family of four siblings, necessitating the siblings being placed in two different homes, there is no policy directing that continuing efforts be made to locate a home suitable for all four children. The implementation of a statewide database of licensed foster homes and their availability would also be a reasonable effort to ensure that placement availability is transparent and accessible to those families who entered care without a home available for all siblings. Current procedures may be reasonable, but they certainly do not exhaust available remedies and steps that should be pursued to effectuate the outcome of placing all out of home children with their siblings. Additional language outlining the affirmative duty to take proactive steps in situations where a suitable home is not immediately available for all siblings would satisfy the Act’s requirements for reasonable efforts without substantially hampering other case management efforts and goals.

Family Notification

ISSUE: The third major provision of the Act requires that adult relatives of children who are removed from their parental home be notified not only of the removal of the children, but of the opportunity to provide placement for the minor children as well. Pursuant to the Act, such notice must be provided within 30 days of the child’s removal from the family home. In addition, the Act requires diligent efforts must be made to identify possible relatives. Perhaps the most important addition in relation to this provision is the inclusion of the requirement to provide information to the relative that informs them that they have the opportunity to accept placement of the child, if appropriate. Issues regarding implementation of this provision include, what type of information should be included in the notice, what diligent efforts must be taken to identify and notify adult relatives, and what procedure are in place to help fast track adult relatives for placement approval when children are removed from the parental home.

CURRENT HHS POLICY: Pursuant to Chapter 7 of 390 NAC, HHS will consider “the least restrictive, family-like setting.” According to the Out-of-Home Placement Guidebook this includes considering the “availability of an adult relative who can provide care for the child.” Regarding notice to relatives, HHS policy prior to the Act emphasized placing children with relatives over “strangers” when appropriate, as well as communicating with parents for information regarding adult relatives of the children. Memo 8-09 speaks much more directly to the issue of steps taken to locate and identify relatives as well as what information must be communicated. The memo adopts the Act’s language regarding diligent efforts by defining minimum diligent efforts as: asking parents for information, following up on “leads” provided by other family members, and utilizing the Federal Parent Locator Service when necessary. As to what “adult relatives” means, Memo 8-09 directs that maternal and paternal grandparents, adult siblings, aunts, uncles, and adult cousins all must be provided notice within 30 days of the child’s removal. Regarding what is contained in the notice, the Memo directs that the notice must include “information about the possibility of placement with a relative, when appropriate.” According to Mr. Matney, there is no requirement for HHS to send notice to relatives of children that were removed prior to the implementation of the Act, however, existing policies in place prior to the Act should have indicated whether an adult relative was available for placement. In determining whether a child is placed with a relative, HHS will continue to assess it as one factor in determining what is in the best interests of the children.

ANALYSIS: Again, the family notification provision of the Act seems to address already existing HHS policy, with a few important amendments and additions. First, it is clear that locating and utilizing adult relative placement has been an emphasis in determining where a child is placed when removed from the home prior to the Act. The Act, however, seems to strengthen the importance of relative placement by adding a time-limit within which HHS must not only locate but also send notice to adult relatives. Most importantly, that notice now must contain language that indicates the possibility of the relative becoming a foster parent for the child removed from care. HHS policy should emphasize this point by drafting and adopting a form notification letter that contains all relevant information regarding placement. This would assure a transparent and reliable process that attorneys can expect to be followed for all cases. The inclusion of such letters in initial assessments and court reports would also assure that the individual case manager and service coordinator are abiding by HHS policies and allow for an open inquiry should their be a dispute as to whether or not an adult relative was provided adequate notice in the prescribed time frame. Finally, for children placed initially in a non-relative foster home, there should be ongoing efforts to locate and utilize a relative placement when appropriate. The significance of relative placement, especially when reunification may not be possible, cannot be understated. As a result, HHS policy should clearly adopt the requirements of the Act while formulating specific procedures for the type of notice and the steps taken to ensure that such notice is followed up on to secure relative placement for children as soon as reasonably possible.

Proposed Bill 9718

A helpful piece of legislation was recently proposed in the Nebraska Legislature. LB 971 proposed to revise Neb Rev. Statute §43-285. The bill would effectively codify many of the Fostering Connections to Success Act’s requirements discussed above into Nebraska Law. Among other changes, the bill would require the following:

  1. HHS to provide written notification within 15 days to non-custodial relatives suggested by the child or the child’s parents. Furthermore, the notification must include information regarding the child’s removal, options available for care and/or placement on a temporary or permanent basis, requirements necessary to provide foster care, and services and assistance that would be made available to the relative should they choose to provide care;
     
  2. HHS to use due diligence in locating prospective relative placements, and reporting to the court within 30 days, the names and relationship to the child of all relatives contacted, the method of contact, and the response received from the relatives;
     
  3. HHS to make reasonable efforts to place siblings together, even if the children are removed at different times. If siblings are not placed together, HHS must provide reasons to the siblings and the court as to why placement together would be contrary to the safety or well-being of any of the siblings.
     
  4. HHS must make reasonable efforts to providing sibling visitation when the siblings are not placed together, even after parental rights are terminated. The sibling visitation time is to be periodically reviewed, and separate petition for sibling time may be filed by the child, parent, HHS, or legal guardian of the child.

If passed, LB 971 would have a strong effect on enforcing the requirements set out in the Fostering Connections Act. While silent as to the issue of schooling, the bill directly addresses the two larger areas of sibling placement and relative notification. It provides a timeline that HHS must abide by when providing notice to families, and purports to hold HHS accountable by requiring caseworkers to document not only their efforts, but the responses received by relatives and then provide that documentation to the court for review. Not only is there a requirement to provide notice to the relative and file proof of the notice with any response with the court, but HHS must also use due diligence in locating the relative. Taken together, all three requirements potentially provide a strong deterrent for caseworkers to not just follow the letter of the law, but also the spirit, i.e. doing whatever it takes to keep children placed together and with family when their custodial home becomes unsafe.

Furthermore, the bill’s language arguably places a very significant burden on HHS. Specifically, the Bill seems to presume that placement of siblings together is always in their best interests, and the burden is on HHS to prove, in those situations where siblings are not placed together, why placement together would be contrary to the safety and welfare of the children. The “contrary to safety and well-being” language indicates that the only viable reason children should not be placed together is for substantive, articulable reasons not systemic ones.

CLOSING

The Act, regardless of its codification in the Nebraska Juvenile Code, is already addressed in large part, by existing HHS regulations and policies. Certainly the addition of Memo 8-09 specifically addresses or defines where existing HHS policies are lacking and what remaining steps are necessary for HHS case managers to take as a result of the Act. It is up to advocates for both parents and children to ensure that HHS case managers are not only undergoing the perfunctory steps to comply with the Act and Memo 8-09, but that those steps are being followed up on and analyzed in a manner consistent with the intentions of the Act and the best interests of the children. No step in a case manager’s duties is without direction found in the litany of material outlining HHS policies and procedures. Be it 390 NAC, the Guidebooks, or Administrative Memos, the information on what is supposed to happen is purposely available online for review and analysis. That information should be utilized by attorneys to make sure their clients are getting the services they require to become a reunified family. When Congress passed the Fostering Connections to Success and Increasing Adoptions Act of 2008 and implemented it into the Social Security Act, it endorsed the importance of the provisions contained therein. The significance of those provisions should not be allowed to be overlooked or glossed over on the individual case level. Families have no bearing on how or how often policies and procedures change in juvenile court practice. One of the best steps an advocate for the family can take is to make it appear as though the process is as simple possible. By advocating upfront for the successful implementation of the Act’s requirements the hope is that soon those requirements will appear to have been in place all along.

Recognizing the New Reality of Diverse Parentage: A Call for Reason in the Juvenile Dependency Justice System

Recognizing the New Reality of Diverse Parentage: A Call for Reason in the Juvenile Dependency Justice System
Recognizing the New Reality of Diverse Parentage: A Call for Reason in the Juvenile Dependency Justice System

Jackie Madara-Campbell, J.D. | 04/30/2010

You’re seven years old, scared and want your mom. Four days ago, some strangers took you from your home and now you’re living with other strangers calling themselves foster parents. When you ask where your mom is, these strangers explain that she’s sick and can’t take care of you. In truth, she’s addicted to prescription painkillers and has an undiagnosed mental illness. Nobody knows where she is.

But you’ve got two parents. So why are you here with these strangers? What you don’t know is that you’re trapped in one of the biggest holes in our juvenile justice system. Your other parent is also a woman. Under the law, these strangers have more right to be involved in your life than she does.

Cases like this are all too common today, as legal and mental health professionals involved with the juvenile justice system are well aware. The issue of parental rights for non-biological parents is something that must be addressed or children will continue to suffer.

New Reality, Old Thinking

When viewed through the eyes and mind of the child, it seems intuitive that “psychological” parents should be key players in any dependency case. It’s well settled that [T]he interest of parents in the care, custody, and control of their children-is perhaps the oldest of the fundamental liberty interests recognized by this [the Supreme] Court.i

However, many state juvenile dependency courts still operate under the legal fiction that the only family a child can have is a biological mother and a biological father. This is old thinking applied to a new reality. In fact, 2006-2008 American Community Survey 3-Year Estimates show that only 21.5 percent of children under the age of eighteen live in “traditional” married couple family households.

Children being raised by same-sex couples especially are, in essence under our laws, a new breed of illegitimates, suffering a fate similar to children born to unwed mothers in prior generations. ii Both groups have been deprived of rights, benefits and protections, not the least of which is a continuing relationship with both parents, based solely on their parents’ marital status or lack thereof. iii

Life on the Edge: Models for Change

Several state juvenile court systems have walked the razor’s edge between biological parental rights and non-biological parental rights and made recent strides of significance in recognizing non-biological parent standing in the best interests of children.

The Uniform Parentage Act (2002) may eventually be a useful tool in the area of legal recognition of non-biological parents as well. Though it has been largely ineffectual in so far, the Act, drafted by the National Conference of Commissioners on Uniform State Laws, and approved by the American Bar Association in 2003, may provide a legal instrument through which our justice system may achieve uniform recognition of non-biological parents’ rights.

In the case of Kristine H. v. Lisa R, 16 Cal.Rptr.3d 123, 151 (2004), a California court of appeal applied the UPA to a dispute between lesbian co-parents Kristine and Lisa. Kristine was inseminated via donor sperm. The couple obtained a declaratory judgment establishing that they were joint legal parents and Lisa was placed on the birth certificate in the space for the father.iv

After the child was born, Kristine and Lisa took joint financial responsibility for the child and cared for her together.vThey registered as domestic partners in the State of California as well.vi

Kristine and Lisa broke up when the child was two years old and Kristine (the biological mother) filed a motion to vacate the previous stipulated judgment that they were joint legal parents.vii

On appeal, the California Court of Appeal found that although the stipulated judgment was unenforceable, Lisa could be declared a parent with standing to pursue custody and visitation under the UPA, specifically under section 7611(d) – the paternity provision which grants presumed father status to men who hold children out as their own, regardless of any biological tie between the man and the child.viii

The California Court of Appeal has further found, regarding the UPA: “The Act contemplates two legal parents irrespective of their gender. As a general proposition, it benefits both the child and the parents to identify as early as possible who is responsible for the child’s protection, guidance, and care.”ix

As the Hawaii Supreme Court has observed regarding the UPA: “The fundamental purposes of [the UPA] are “to provide substantive legal equality for all children regardless of the marital status of their parents’ and to protect the rights and ensure the obligations of parents of children born out of wedlock.”x

It follows, that, within the states that have adopted the UPA, or relevant portions of it, the Act may provide non-biological parents a vehicle to obtain a judgment to enforce their rights regarding a child in a dependency proceeding. Additionally, the UPA may offer one way to improve the children’s position in many legal situations without running afoul of a Defense of Marriage Act.xi

Some states have adopted standards similar to the UPA via legislative enactment or common law. South Carolina, for example, has a family court with exclusive original jurisdiction over any child who is neglected or alleged to have violated or attempted to violate any state or local law or ordinance.xii

In Middleton v. Johnson, 369 S.C. 585, 593, 633 S.E.2d 162, 167 (2006), the South Carolina Court of Appeals determined the legal standard for a third party’s claim for visitation of a non-biological child for whom he or she claims to have functioned as a psychological parent.

The court held that, while great deference is accorded to the visitation decisions made by a fit parent, the family court can in fact grant visitation to a third-party over a fit parent’s objection when faced with compelling circumstances.xiii

The South Carolina Court of Appeals, in Middleton, acknowledged that South Carolina’s General Assembly, in seeking to promote the goal of safeguarding the best interests of children, recognized that in certain circumstances, persons who are not a child’s parent or legal guardian may be proper parties to a custody proceeding.xiv

The Middleton Court identified four factors in determining whether a person stands in the shoes of a psychological parent to a child:

  1. When a legal parent invites a third party into a child’s life, and that invitation alters a child’s life by essentially providing him with another parent, the legal parent’s rights to unilaterally sever that relationship are necessarily reduced. The legal parent’s active fostering of the psychological parent-child relationship is significant because the legal parent has control over whether or not to invite anyone into the private sphere between parent and child. Where a legal parent encourages a parent-like relationship between a child and a third-party, the right of the legal parent does not extend to erasing a relationship between the third party and her child which she voluntarily created and actively fostered.xv
     
  2. The second prong considers whether the psychological parent and child have lived together.xvi
     
  3. The psychological parent must undertake the obligations of parenthood by being affirmatively involved in the child’s life by assuming caretaking duties and providing emotional support for the child.xvii
     
  4. The length of time the psychological parent acted in a parental capacity must be sufficient for a parent-child bond to have been established. Further, inherent in the bond between the child and the psychological parent is the risk of emotional harm to the child should the relationship be curtailed or terminated.xviii


A Call For Reason

Children and families across the country are suffering from a juvenile justice system that hasn’t fully caught on to the new reality of family diversity. Several states have taken steps to address this, but much more needs to be done. A juvenile justice system that doesn’t adequately account for the issues of non-biological parents – particularly same sex couples – is a system that doesn’t fully or fairly protect the children and families it is intended to serve.

A reasonable approach must be found and applied that properly balances the rights of biological parents and “psychological” parents and attains the ultimate goal of preserving family relationships and, above all, the best interests of the child no matter what the biological situation of his or her parents.

No child should be removed from home and sent to live with strangers simply because the law doesn’t account for that child’s situation. Legal recognition of diverse parentage is simply in the best interests of our children. It is a hole in our system that must be filled.

Reforming Juvenile Justice Through Impact Litigation: Can Recent Success in California Be Duplicated in Nebraska?

Reforming Juvenile Justice Through Impact Litigation: Can Recent Success in California Be Duplicated in Nebraska?
Reforming Juvenile Justice Through Impact Litigation: Can Recent Success in California Be Duplicated in Nebraska?

Mark Porto | 02/04/2010

As an attorney who performs a rather high percentage of my practice in the juvenile court arena, I have heard many foster parents, support workers, and even the occasional caseworker complain about the rather minimal amount of financial assistance provided to foster parents. It took my recent trip to the National Juvenile Law Conference in New York City, however, to truly understand just how poorly we, as Nebraskans, treat these often thankless heroes in the lives of children who wind-up in the foster care system. Specifically, the presentation I attended was conducted by attorneys from the Children’s Advocacy Institute in California who had recently participated in groundbreaking federal litigation regarding the sufficiency—or insufficiency—of reimbursement payments issued to foster care providers. This was truly an eye-opening presentation which I believe could very well be duplicated in Nebraska.

The Problem

Simply put, the State of Nebraska provides the lowest per-month reimbursement rate to foster parents in the entire United States and the second lowest when adjusted for cost-of-living considerations . This is a problem not only for the financial well-being of those families who choose to perform foster care services, but also for the many children who are at risk of being deprived of a traditional foster care home—often the best-case scenario during what is obviously a difficult situation—because traditional foster care providers are not being provided with the financial assistance necessary to cover the monetary burdens associated with caring for a foster child.

Nebraska’s foster care reimbursement problem is not merely an unfortunate systematic inadequacy, it may very well be a violation of federal law. That is, under the federal Child Welfare Act (“CWA”), a state’s eligibility to receive federal funding is dependent on its agreement to, among other things, issue “foster care maintenance payments” to persons providing licensed foster care services . The CWA goes on to state that:

[t]he term ‘foster care maintenance payments’ means payments to cover the cost of (and the cost of providing) food, clothing, shelter, daily supervision, school supplies, a child’s personal incidentals, liability insurance with respect to a child, and reasonable travel to the child’s home for visitation.

In 2007, a study was released by the University of Maryland School of Social Work which shed light on the inadequacy of foster care reimbursement payments on a state-by-state basis. The study examined the actual costs necessary to provide foster children with those items required to be provided—or “covered”—by the states in the form of financial reimbursement to foster parents under the CWA. This amount was referred to as the “Foster Care Minimum Adequate Rates for Children” (or “Foster Care MARC”) . The study then compared these costs with the amount of reimbursement each state actually provided to foster parents.

The results of the study were striking. Most notably, all but two jurisdictions—Arizona and the District of Columbia —needed to increase payments to foster care providers of at least one age group. In fact, more than half of the states needed to increase payments by at least 50% in one or more age group in order to adequately “cover” these costs. With respect to Nebraska, the results were even more alarming. That is, in order to become in compliance with the University of Maryland’s “MARC,” the study found that reimbursement compensation to Nebraska foster parents needed to increase 103% for children age 9; 123% for children age 16; and an appalling 181% for children age 2. Only the State of Ohio was found to be lacking at a level exceeding that of Nebraska.

Changes Through Impact Litigation 

In October, 2007, armed with the results of the University of Maryland Study, a group of California foster parents filed a class-action lawsuit against the California Department of Social Services seeking declaratory judgment and injunctive relief on account of the Department’s failure to abide by the Child Welfare Act’s requirement that the Department provide maintenance payments to foster care providers which “cover” the cost of foster care services. The result of the litigation was a relatively quick and decisive victory in favor of the foster parents. Specifically, in granting summary judgment in favor of the plaintiff-foster parents, the United States District Court for the Northern District of California stated that, because the California DSS based the amount of its foster care payments solely on general budgetary considerations, and without regard to the Child Welfare Act’s specific requirements as to what must be “covered,” the Department was not in compliance with federal law.

Is a Similar Action Ripe for Nebraska?

The results of the California litigation, coupled with the Maryland Study’s conclusion that Nebraska’s foster care reimbursement rates fall far short of the CWA’s requirements, seemingly provide reason to believe that similar litigation could be successful in the Nebraska federal court system. Specifically, the successful litigation in California State Foster Parent Assn. revolved around rates which—even when adjusted for cost of living—were much closer to the Foster Care MARC than those provided to Nebraska foster care providers. Moreover, like the California DSS, it does not appear as though the base reimbursement rates set forth by the Nebraska DHHS were developed based upon criteria which objectively considered the amount it actually takes to “cover” the costs that the state is required to “cover” by virtue of the CWA and the state’s acceptance of federal funding.
390 NAC 7-004.05 is the Nebraska regulation governing foster care payments.

According to the regulation:
[t]he payment rate is determined by the use of the Foster Care Payment Determination Checklist plus child care, respite care, transportation, and other needs based on the guidelines as found in the Out-of-Home Placement Guidebook.

According to the “Out-of-Home Placement Guidebook,” the maintenance payment provided to a foster care provider is based on 1) the age of the child; and 2) the child’s needs. The base amount—or the amount issued in the absence of any “special needs” of the child—includes “board and room;” “personal needs;” “school needs;” “transportation to meet child’s needs;” “clothing;” and “allowance” and amounts to $222 per month for children ages 0-5; $292 for children ages 6-11; and $352 for children 12 and over—well short of the University of Maryland’s foster care “MARC” for children in foster care in Nebraska. Additionally, conspicuously absent from the “Out-of-Home Placement Handbook” is an explanation as to how the base figures were determined, nor is there any evidence justifying these figures with respect to the state’s obligation to “cover” foster care payments under the CWA.

It certainly seems as though Nebraska current foster care reimbursement rates need to be reevaluated in light of the University of Maryland study. Clearly, there is precedence for successful class-action litigation based primarily on the study—from a state which, according to the study, was actually much closer to the Foster Care MARC than Nebraska. That being said, the unsuccessful litigation in Carson P. v. Heineman, 240 F.R.D. 456 (D. Neb. 2007), does leave reason for skepticism regarding the chances that such litigation could be successfully prosecuted by a private class of Nebraska citizens. Specifically, in Carson P., a group of children in the Nebraska foster care system brought a class-action lawsuit against the State of Nebraska alleging, among other things, that they were harmed by Nebraska’s failure to abide by the CWA’s requirement that it “cover” the cost of foster care. In dismissing that portion of the lawsuit, the court held that the CWA did not provide the children with a private right of action for damages based on a state’s failure to comply with the mandates of the CWA.

The Carson P. court gave two justifications for this determination. First, the court indicated that, because the plaintiff-children were not the direct recipients of the foster care reimbursements, they were not the proper party to initiate an action contesting the inadequacy of the rates. Instead, the proper party would have been the actual foster care providers. Second, the court held that the right to adequate foster care maintenance payments was too “vague and amorphous” to constitute an enforceable federal right.

The first hurdle experienced by the Plaintiffs in Carson P. regarding a private right of action under the CWA would presumably be overcome by Nebraska litigation based on California State Foster Parent Assn. in that Nebraska foster parents are direct recipients of foster care payments whereas the children in Carson P. were not—a critical distinction according to Carson P. While the second hurdle—that the CWA’s requirements regarding foster care payments are too “vague and amorphous” to provide individuals with a private right of action—may not be overcome at the Nebraska federal trial court level, there is reason to be optimistic that the Eighth Circuit may feel differently. That is, while the Carson P. court did not feel as though the CWA’s requirements regarding foster care maintenance payments were sufficiently definitive to provide foster parents with a private right of action, there is clearly authority supporting an opposite conclusion. For instance, the court in California State Foster Parent Assn. specifically stated that “the Child Welfare Act contains the rights-creating language necessary to confer upon plaintiffs a private right of action under Section 1983.” Perhaps even more encouraging is the fact that, in Missouri Child Care Assn. v. Martin, 241 F.Supp.2d 1032 (W.D. Mo. 2003)—a case within the Eighth Circuit’s geographical area—the court held that the CWA did create a private right of action, stating that “Congress provided sufficient guidance in the CWA to permit judicial enforcement.” Thus, while the Carson P. precedent would likely preclude Nebraska foster parents from initially reaching the merits of a challenge to the state’s current foster care reimbursement rates, there is certainly reason to believe that Carson P.’s prohibition regarding private challenges under the CWA could be overcome with the right group of Plaintiffs (foster parents as opposed to foster children) and a possible challenge to the Eighth Circuit Court of Appeals.

Conclusion

The results of the University of Maryland study, coupled with the recent litigation in California Foster Parent Assn. provides what I believe to be the groundwork for a major reconsideration of Nebraska’s foster care reimbursement rates. Too many Nebraska foster care providers are currently forced provide their own financial resources to adequately care for children in their home. This is an unacceptable situation and one that may very well violate the Child Welfare Act. Perhaps the Nebraska DHHS will see the aforementioned California litigation as a “wake-up call” and reconsider its current policies regarding foster care reimbursement. If it does not, however, then perhaps the environment is ripe for similar litigation designed to improve the lives of Nebraska’s foster children.

Fostering Connections to Success and Increasing Adoptions Act of 2008

Fostering Connections to Success and Increasing Adoptions Act of 2008
Fostering Connections to Success and Increasing Adoptions Act of 2008

By Natalie Nelsen, J.D.

12/29/2010

On October 7, 2008, the Fostering Connections Act was signed into law. The Foster Connections Act is designed to help children and youth in the foster care system by promoting permanent families for them through relative guardianships and adoptions and by improving education and health care. The Act has six key areas of focus to improve outcomes for youth. It is important to note that many of the requirements of the Act are tied to eligibility for Title IV (E) funding, and many of the resources made available through the act are only available if the child is IV(E) eligible.

Promoting Family Connections and Enhancing Support for Relative Caregivers

1.) Within 30 days of a child’s removal from the home, the Department must exercise due diligence to identify and provide notice to all adult relatives of the child. The Act does provide an exception to the notice requirements where there is “family or domestic violence.”

2.) The Act allows for case-by-case waivers of non-safety licensing standards for relative placements.

3.) The Act gives states the option to use federal IV-E funds for kinship guardianship payments for children cared for by relative foster parents who are committed to caring for these children permanently when they leave foster care. The children must be eligible for federal foster care maintenance payments while in the home of the relative and must reside with the relative for at least six consecutive months in foster care to be eligible for the kinship guardianship assistance payment.

4.) The Act authorizes a new grant program for activities designed to connect children in foster care with family. Funds can be used for: (a) kinship navigator programs, (b) intensive family-finding efforts, (c) family group decision-making meetings for children in the child welfare system with special attention to children exposed to domestic violence, or (d) residential family substance abuse treatment programs.

Promoting Sibling Co-Placements and Visitation

1.) The Act mandates that reasonable efforts be made to place siblings together unless contrary to a child’s best interests.

2.) If placement together is not an option, the act requires that reasonable efforts be made to maintain sibling connections through visitation.

Improving Outcomes for Older Youth

1.) The Act provides for continuation of federal support for youths in foster care, guardianship, or adoption assistance to age 21.

2.) The Act requires that the Department develop a transition plan at least 90 days prior to discharge. This plan is in addition to, not in place of, the independent living plan that the Department is required to develop for all youths ages 16 and older.

3.) The Act allows federal reimbursement for a “supervised setting in which the individual lives independently” for youth 18 to 21 years old.

Education and Health Care Access

1.) The Act requires that children in foster care remain in their original school when they enter or change placements, unless remaining in that school is not in the child’s best interests. The Act provides federal support for transportation to enable children to remain in their original school.

2.) If remaining in the same school is not in the child’s best interests, the Act requires that the child is immediately enrolled in a new school with all education records of the child provided to that new school.

Strengthening Adoption

1.) The Act increases incentives in current law to promote the adoption of children from foster care. The act also permits states to receive an additional payment if the state’s adoption rate exceeds its highest recorded foster child adoption rate since 2002.

2.) By “de-linking” a child’s eligibility for federal adoption assistance payments from the outdated AFDC income requirements, the Act increases the number of children with special needs who can be adopted with federal support.

3.) The provisions of the Act mandating sibling placement together, also extend to adoptive placements, provided that it is in the children’s best interests.

Indian Tribe Related Provisions

1.) The Act provides that tribes can apply to the Department of Health and Human Services to administer Title IV-E foster care and adoption assistance programs, and to receive direct funding from DHHS. In the absence of this direct receipt of funding, States are required to negotiate IV-E agreements with the tribes in good faith, if requested by the tribe.

2.) All Indian children placed by Indian tribes who are operating through the Title IV-E program pursuant to an HHS approved plan or through a tribal-state agreement are eligible to receive IV-E foster care maintenance or adoption assistance payments, if they otherwise meet Title IV-E criteria.

WHAT DOES THIS MEAN FOR ATTORNEYS AND JUDGES?

Attorneys, guardians ad litem, and Judges are in a unique position to help ensure that the mandates of the Fostering Connections Act are being met for the children you work with. The Nebraska Department of Health and Human Services has issued an administrative memo outlining the actions Child and Family Service Specialists are required to take under the Foster Connections Act.  I would encourage you to print off that memo, or print this article and use it as a checklist in your own cases to ensure that these mandates are being met. If you find in a particular case that the mandates are not being met, don’t be afraid ask the Court to make a finding that reasonable efforts have not been made. The mandates of the Fostering Connections Act are only going to improve outcomes for children in the foster care system, if we ensure that they are getting put into practice in the lives of the children we work with.

Mental Health Court: A Specialized Model for Juvenile Court

Mental Health Court: A Specialized Model for Juvenile Court
Mental Health Court: A Specialized Model for Juvenile Court

Tina Marroquin | 11/02/2009

As 27 families dropped their children off at hospitals after the implementation of Nebraska’s safe-haven law, it became apparent that Nebraska is not meeting the mental health care needs of its children. In the aftermath of the safe-haven legislation, health care professionals and children’s advocates identified the need for one-stop crisis centers, more respite care beds, and more funding for outpatient and residential treatment programs for children(1) as well as a single access point for mental health services.(2) The court system, also should consider its role in addressing mental health issues for juveniles.

As a juvenile court practitioner, it is apparent that our Nebraska juvenile justice system is impacted by the lack of front-end recourses for families. Families that are unable to access necessary mental health care for their children often find themselves appearing in juvenile court. Too often a child’s behavior escalates to the point where they are uncontrollable by the parent. In other instances, the child’s mental health condition may contribute to a violation of the law. These situations can result in a juvenile court filing by the State of Nebraska. The juvenile then comes into the jurisdiction of the Nebraska juvenile court system. Increasingly, states are implementing a new approach in addressing the mental health needs of children. In several jurisdictions, juvenile courts are conducting “Mental Health Court.”

At a conference hosted by the National Association of Counsel for Children (August 2009) researcher Monic Behnken presented an overview of the Mental Health Court model and an outcome-based evaluation of its effectiveness. According to Behnken this specialty court model has a specific offender population, places an emphasis on psychiatric treatment, and conforms to Therapeutic Jurisprudence principles.

The practice of a Mental Health Court started in Santa Clara County, California, in 2001. This project was led by the Honorable Leonard Edwards. The premise of the court is simple: this court is for minors who have mental health disorders and break the law. According to the Santa Clara County website “The juvenile justice system is not the right answer for most cases when the minor has a serious mental disorder. Some minors go back to Juvenile Justice Court over and over because of their mental problem.” (3) A survey conducted at the Santa Clara County Juvenile Justice Court, found that in one day 215 out of 303 miners were already getting some kind of mental health services and half of them needed medicine for their condition. A recent study of Douglas County’s Juvenile Detention Center suggests that mental health issues are also a concern to Nebraska youth: 25% of the youth detained were identified as having a psychological impairment. (4)

Eligibility for Mental Health Court varies by jurisdiction. In Santa Clara County, the minor is evaluated for a mental health disorder. Disorders include, but are not limited to, major depression, bipolar, schizophrenia, severe anxiety, developmental disability and autism. The minor must be charged with a property or drug crime, which cannot include selling drugs. Once these criteria are met, participation in the Court is voluntary. The juvenile has to admit the charges in order to be accepted into the Court.

The structure of the Court is significantly different from the traditional hierarchical juvenile court. The Court adheres to the CITA (Court for the Individualized Treatment of Adolescents)structure which incorporates a team of individuals focused on the treatment needs of the juvenile. The team consists of the judge, probation officer, mental health practitioner, district attorney, defense counsel, family, school and an advocate. This team conducts Mental Health Court regularly with the juvenile in attendance. The team reviews services, medication, and support to ensure treatment needs are being met. This structure promotes a child-centered, multidisciplinary, and family focused approach to treatment.

Intervention services are comprehensive and fall into four categories. Psychoeducation interventions include programming such as domestic violence/teen batterers programming, anger management, parenting, job training, independent living skills, problem solving, victim awareness and substance abuse. There are also medical interventions which include neurological, psychiatric, medication and medical/dental evaluations. The school is the third area of intervention which creates individualized education programs and oversees regular school attendance. Finally, the Court may introduce sanctions such as drug testing, restraining order, restitution, community service, electronic monitoring and home detention.
The success of this specialized court is demonstrated by Behnken and her team’s research examining recidivism rates. Two of the most common offenses among Santa Clara County’s juvenile offenders were assault/battery and theft. While many other offenses were included in the research, you can observe the impact on recidivism by comparing pre and post admission offenses of these crimes:

Assault/Battery: Pre-admission=34 (53.13%), Post-admission=7(10.94%)
Theft: Pre-admission=18 (28.13%), Post-admission= 5 (7.81%)

The conclusion of Behnken’s research was that the Mental Health Court reduced recidivism in the areas of assault & battery, violent threats, possession of a dangerous weapon, theft and vandalism. She further concluded that Mental Health Court reduced recidivism in other offenses as well.

While the Mental Health Court does not solve the problem of access to services prior to entering the juvenile justice system, it does offer a model to address mental health needs and lower the frequency of re-entry into the juvenile system. Several other jurisdictions have implemented juvenile Mental Health Courts with variations from the Santa Clara County model (Texas, Washington).

Nebraska law provides a specific section for the filing of a juvenile petition in instances where there are mental health needs (see Neb. Rev. Stat. §43-247(3c).) These filings tend to be rare in comparison to the law violations and uncontrollable filings that are generally the source of adjudications in Nebraska. Considering the likelihood that mental health issues underlie these incidences, a specialized court to meet children’s mental health needs may be of great value to our current juvenile justice system and the Santa Clara County Mental Health Court may serve as a model for Nebraska as they work to improve outcomes for youth in our juvenile justice system.

Placement Issues Under the ICPC

Placement Issues Under the ICPC
Placement Issues Under the ICPC

Shon T. Lieske | 11/17/2008

If you are like myself and, as I suspect, most attorneys practicing in the area of Juvenile Law, the ICPC is something you have heard of, and maybe even dealt with on occasion, but for the most part, is something that simply slips into the morass of other acronyms that you have some vague understanding of what it stands for, and less understanding of how it applies. In my three years as a practicing juvenile law attorney, I have had one case involving the Interstate Compact on the Placement of Children (ICPC), and following the “receiving state’s” completion of the home study, my client in that case decided to relinquish her parental rights, and so any further placement issues under the ICPC thereafter, quickly dissolved. Following that experience, I have simply been fortunate that no other case has yet to test my limited knowledge of the ICPC, and how to handle placement under this compact.

Fortunately, I was able to attend the National Association for of Counsel for Children’s 31st National Juvenile and Family Law Conference this past summer and listen to Vivek Sankaran speak on the issues commonly presented by the foster placement of a child across state lines, which would trigger the application of the ICPC. It is my hope that I can impart a few suggestions that I learned on how to facilitate out of state placement through the ICPC, and, if possible, avoid the application of the ICPC altogether.

APPLICATION OF THE ICPC

The ICPC was created and enacted by every state in the 1950’s with the intention of ensuring the safe and responsible placement of foster children across state lines by mandating that a state could not place a child in foster care in another state without the approval of the destination state’s child welfare agency and a determination in the destination state that the out of state placement is not contrary to the interests of the child. Despite the noble intentions of the compact, it is easy to see the problems and confusion apt to arise with the court’s and welfare agencies of two different states attempt to coordinate placement, especially when it involves the application of subjective standards by different states’ agencies and courts.

The ICPC generally applies when a child placed in foster care in one state has a relative or foster family in a second state that is willing to act as placement for the child from the first state. When this occurs, the Juvenile Court or Health and Human Services Agency (Welfare agency) in the state with the current placement of the child (the “Sending” state) must contact the Welfare agency in the state with the possible family placement (the “Receiving” state) to request that the Welfare agency in the Receiving state conduct a Home Study on the family requesting placement. The purpose of the Home Study is to determine whether the placement would be safe for the child, and then to determine whether the placement would be contrary to the interest of the child. Both determinations are made by the Receiving state’s welfare agency. Under the recommendations of the ICPC, this home study is to be completed by the receiving state within 30 days of the Sending state’s request, however, this time line is rarely-if ever-followed. Meanwhile your juvenile is languishing in either a “stranger” foster placement or a temporary care facility.

Even if you can get the Home Study done in somewhat of a timely manner, the problems really begin if the Welfare agency of the receiving state denies placement based on the “…unless contrary to the interest of the child” language in the compact. Since, according to the compact, this decision is made by the out of state Welfare agency, the Sending state’s Juvenile/County Court has no jurisdiction to review the decision, of an out of state agency, and the compact contains no provision for review of this decision and there is no right to appeal. At this point, as an advocate for the child or the family, you are left with few options, which are primarily informal. One option is to attempt to “fix” the problem with the placement family which caused the denial of the placement in the first place and request another home study be completed. If you have previously convinced your own Juvenile Court Judge that this placement is best for the child, you can ask your Judge to call a Juvenile Court Judge in the Receiving state and see if the Judge can help facilitate the process with the Receiving state’s Welfare agency. Lastly, in some instances, if the Receiving state allows it, you can have a private agency conduct the home study.

AVOIDING THE ICPC

Due to the problems arising from going through the ICPC to place a child out of state, avoiding the ICPC altogether may be the best course of action. The first course of action, of course, is to determine if the ICPC even applies to your case before you bring in the Receiving state’s Welfare agency. First, the ICPC does not apply to out of state visits. The guidelines under the model regulations of the ICPC state that anything over thirty days qualifies as “placement.” Second, if you are confident in the out-of-state placement and if the family in the Receiving state is willing to execute a guardianship of the child, you can file the guardianship in the Sending state and then transfer the guardianship to the state court in the Receiving state. Since the ICPC only applies to out of state placement, placing the child in guardianship negates the necessity to move the case through the ICPC. Third, if the out of state placement is a family placement, you can argue that the child going to live with family out of state is not “placement” for the purposes of the ICPC. However, this would be a narrow exception that would not apply in most cases where out of state placement may be necessary. I could possibly see this argument being applicable in some of the recent “Safe Haven” cases where there is an out of state family placement for the child in an abandonment case and the parent abandoning the child has no other contacts with Nebraska except for utilizing the current Safe Haven Law to abandon the child in Nebraska. Lastly, ICPC may not apply to a biological parent who is out of state and seeking placement of his or her child. In order to avoid the application of the ICPC or an arbitrary denial of placement by an out of state welfare agency, you can argue that the equal protection clause negates the application of the ICPC in that the ICPC may create two groups of “parents,” in-state and out-of-state, in which different rules apply. You can also base an argument on the Constitutional right that parents have to raise their children as they see fit, and the parent/child relationship cannot be severed without a finding of unfitness.

FINAL THOUGHTS

The bottom line in dealing with cases that may touch the ICPC is that dealing with the compact can be difficult and may cause unintended and unfortunate consequences to the child that are not the child’s best interest. The strategies I learned at this conference can be helpful in working through the ICPC or help you avoid the ICPC altogether. However, as child and parent advocates, we must always remember to keep the best interest of the child in mind and always remember that we still bear the “persuasive burden” of convincing our own Juvenile Court Judge that the out of state placement is a good and appropriate placement for the child regardless of any issues caused by the ICPC.

Immigration Issues in Nebraska Juvenile Courts

Immigration Issues in Nebraska Juvenile Courts
Immigration Issues in Nebraska Juvenile Courts

Kelli Hauptman, J.D. | 05/05/2008

The issue of immigration has moved into the spotlight in Nebraska and all indications suggest that it will be a significant issue for the next several years. Groups and governmental entities have narrowed their focus and analysis to specific issues of immigration, such as granting or prohibiting qualified undocumented immigrants in-state tuition at state colleges or imposing taxes on remittances. But perhaps at the forefront of the immigration spotlight in Nebraska has been the raid by ICE (Immigration and Customs Enforcement) in 2007 at a meat-packing plant in Grand Island. As has Schuyler, Lexington and Norfolk, Grand Island has seen a rise in its population of immigrants due to increases in need for unskilled labor. After the Grand Island raid, there were numerous commentaries from national groups about the rights of the detained workers, the conduct of ICE, and the correct deportation process. There was also discussion about the consequences the absence of a salary-providing head of household would cause.

Somewhat less discussed in those reports was the impact undocumented immigration has on courts in dealing with juvenile issues, even in the absence of a mass raid. This Spotlight Issue provides a cursory overview of current issues in Nebraska juvenile courts arising from illegal immigration.

In the United States, over 5 million children live with undocumented parents.4 In Nebraska, estimates suggest between 35,000 to 50,000 people have undocumented immigrant status.2 Between 1990 and 2000, the Hispanic population of Nebraska increased 155%.2 The population of young children of immigrants in Nebraska had the second highest increase nationwide between 1990 and 2000 at 269%.4

Immigrants, whether legal or illegal, tend to have lower incomes than citizens. In 2003, 54% of children of immigrants in the United States lived in low-income households.4 In Nebraska, 18.2% of all immigrants households and 29% of Spanish-speaking households lived at or below the poverty line.5 In 2005, 52.6% of immigrant workers earned less than $25,000 per year.5 Low-income households are statistically connected to greater food insecurity, worsening health and crowded housing, and families with diminished standards of living are more likely to come to the attention of state agencies and the courts.

However, due to the reluctance of undocumented immigrant parents to contact governmental entities to access services, even if available, based on the fear of being deported, children of immigrants are less likely to get governmental assistance, such as food stamps or housing.4 For example, in 2001, 13.2% of low-income non-citizens used Medicaid compared to 33% of low-income citizens.5

In most ways, child welfare cases involving children of undocumented immigrants are treated in the same manner as those involving citizens. Reports are made, safety assessments are conducted, a safety plan is enacted or possibly the children are removed from the parental home. The children are entitled to medical care, foster care and other services in the child welfare system.1 The undocumented parents are entitled to the same notice of proceedings and the same rights of counsel. The court may not be even aware of the immigration status of the parents.

However, when a parent is undocumented, several issues may arise during the pendency of the proceeding. Lack of citizenship or legal immigrant status may not only affect how the parent acts in the proceeding and reacts to governmental agencies tasked with providing reasonable efforts to reunify or establish permanency, but may create unique situations for attorneys and the courts.

This article outlines some problems that have been encountered in Nebraska courts involving undocumented immigrant parties and best practices in working with undocumented children and families.

Problems Encountered in the Nebraska Juvenile Courts

Issues in abuse and neglect cases are complex enough without immigration issues. When a parent is determined to be undocumented, or parties suspect illegal immigrant status, the nature in which the parent will deal with DHHS or the court stakeholder may be affected. If a parent is undocumented, she may avoid contact with state agents, or those she assumes to be state agents, due to fear of deportation. Undocumented parents may be ineligible for services that could have otherwise been available to eliminate conditions that led to out-of-home placement of the children.

Relative placement may also become more difficult if relatives are likewise undocumented. A relative’s undocumented status may make it less likely that he or she will come forward as a possible placement. Even if relatives are open and willing for placement of the children in their home, the caseworker or other parties may have concerns about placement of a child in state custody in the home of an undocumented person. For example, the state may feel that the placement would be unstable or that the relative could not access needed services for the child. Language barriers could also be an issue that would delay placement of the children with a non-English speaking relative.

Other immigration issues that have arisen in Nebraska juvenile courts are:

Placement of a child with a non-custodial parent or relative residing in another country.Placement includes temporary placement as well as permanent. Quality, timely home studies are often difficult to find in many countries. Distance between the juvenile court and the long-distance parent or relative can also be a deterring factor if the court wants to maintain close observation over the situation. Transferring the case to a juvenile court in the country where the child is placed is often not an option due to the absence of equivalent juvenile courts.


Children being sent to the United States by the parent.In one case, a guardian ad litem in Omaha was appointed for a child sent to the United States from Guatemala “for a better life.” The mother living in Guatemala then died. The guardian ad litem concluded that it would not be in the child’s best interest to return to Guatemala, so she petitioned the juvenile court to appoint an immigration attorney to file for Special Immigrant Juvenile Status. See citation 3 for discussion of a similar scenario.


Translation of court reports and case plans to parents who do not speak English.In most cases, case plans are explained to a parent by an interpreter; however, the case plan is often not translated into the parent’s language. Therefore, the parent has no materials in which to refer to after the hearing or meeting.


Illegal immigrant parents who are perpetrators of sexual abuse of the child. In this case, the parent often faces concurrent criminal charges and likely deportation. Therefore, the parent has little chance to attempt reunification or work on a case plan. This scenario can also occur when the parent is charged with a non-sexual crime but is brought to the attention of immigration authorities.


Parents living in the home with a number of illegal immigrants. Roommates who are illegal immigrants will often refuse consent to background checks. This may affect the ability of the child to attend visitation in the parental home or be placed at home on a trial home visit, or the finding of the court that the parent has substantially complied with the case plan if the case plan includes finding appropriate housing.


Accessing the full history of the parents. . If a parent is a citizen of another country, it can be difficult for the caseworker or county attorney to access the parent’s criminal history or other information about the parent’s past.


Best Practices in Other States

The New Mexico Court Improvement Project issued a Best Practices Bulletin that included practices for working with undocumented children and families.1 Below are a list of best practices applicable to individuals working with undocumented families in the abuse/neglect court system:

Educating everyone in the child welfare system about immigration relief programs and other immigration issues likely to arise, including how immigration status may affect availability of services.


Including timely legalization of immigration status in the permanency plan or the independent living plan for children in care.
Ensuring families are accessing community resources available to immigrant families.


Providing early assessments of the children and families to determine eligibility of various immigration relief, such as visas or Special Immigrant Juvenile Status


Making interpreters available for all child welfare staffings, meetings and court proceedings, and not using children as interpreters for their parents.


Taking into account immigration stressors that may be affecting areas of the case.
Notifying the home country foreign consulate within 3 working days of the removal order, even if it is unclear whether the child is a foreign national.


In an analysis of cases with immigrant parents faced with deportation proceedings, Ilze Earner recommends additionally that stakeholders 6:

Make efforts to locate relatives to preserve cultural and familial connections, and

Become familiar in working with international social services agencies to expedite transnational home studies


Commission on Children in the Courts: Subcommittee on Immigration

Nebraska currently has no court-based best practices in dealing with cases involving immigrant parents and children. However, the Commission on Children in the Courts, developed by Chief Justice John Hendry in 2005 to study appropriate steps the judicial system could take to improve its responsiveness to children who are impacted by its decisions and actions, has created a new Subcommittee to examine this issue in Nebraska’s courts. More information about the Commission’s activities is available here.

Pre-Hearing Conferences in Nebraska

Pre-Hearing Conferences in Nebraska
Pre-Hearing Conferences in Nebraska

Kelli Hauptman, J.D. | 03/19/2008

Pre-hearing conferences has become a term increasingly used in the Nebraska abuse/neglect court system. Since their introduction to Nebraska stakeholders in September 2006, pre-hearing conferences have become widely used by courts as a method to front-load the system and shorten the time necessary to place a child in a permanent home. Anecdotal evidence from judges, attorneys, caseworkers and other suggest that pre-hearing conferences have generally been successful in acquiring more information at the commencement of the case, providing services to parents and children at the earliest opportunity, and moving the case to permanency faster.

To learn more about pre-hearing conferences, read an article published in the November/December 2007 Nebraska Criminal Defense Attorneys Association newsletter.

This briefing highlights notable activities across Nebraska involving pre-hearing conferences:

Standardized Protocol

The Protocol Development Committee (PDC), whose members are multi-disciplinary and regionally diverse, was formed by the Through the Eyes of the Child Initiative in early 2007 based on the need expressed by local teams to have a standardized protocol that they could use to establish their practices and procedures in pre-hearing conferences. In late 2007, the Protocol Development Committee approved and published a standardized protocol for pre-hearing conferences. The protocol was the result of months-long discussion and collaboration by PDC members on various aspects of the pre-hearing conference. The Protocol Development Committee continues to meet regularly and is currently addressing the need for training on the pre-hearing conference process.

Legislation

Senator Ashford has agreed to sponsor a bill that addresses confidentiality in pre-hearing conferences and family group conferences. The language of the bill provides that “[a]ll discussions had during these facilitated conferences…shall be considered confidential and privileged communications consistent with the provisions contained in Sections 25-2914 and 25-2933 R.R.S. Nebraska.”

Click here for complete text of the bill.

The legislation was drafted in response to concerns of judges and attorneys about information revealed during the conferences, specifically by the parents. Heretofore, some courts have implemented local rules, regulations or guidelines addressing the confidentiality of pre-hearing conferences. However, uncertainty remained as to enforcement of those rules and guidelines in other jurisdictions. The proposed legislation will make the rule of confidentiality consistent among all courts with the intent to encourage the free flow of information during the pre-hearing conference.

Data Study

The Through the Eyes of the Child Initiative is currently conducting a data study on pre-hearing conferences at 6 sites across Nebraska. The purpose of the study will be to analyze the nature and effect of pre-hearing conferences on the court process and the outcome of abuse/neglect cases. Data will be collected through case file reviews and online surveys of participants. It is expected that the results will be released in early summer 2008. The 6 teams that volunteered to be sites for the study are: 10th District, Team 1 (led by Judge Offner), 10th District, Adams County (led by Judge Ott), 11th District, Team 1 (led by Judge Clark), 5th District Team (led by Judge Rouse), 7th District Team (led by Judge Stoffer) and 12th District, Team A (led by Judge Worden).

Training

As indicated by the Norfolk team’s training on pre-hearing conferences on January 4, 2008, the use and acceptance of pre-hearing conferences in abuse/neglect cases is becoming widespread across the state. Judge Ross Stoffer, the 7th District team lead judge, and Dick Stafford, team member, guardian ad litem, and facilitator, spearheaded the training, which was attended by judges and attorneys from across the district.

Judge Ross Stoffer
Judge Ross Stoffer (above)

The purpose of the training was to educate potential participants about the background and goals of the pre-hearing conference. This was accomplished through the use of a 5-member panel where each member spoke on his or her individual experiences from a pre-hearing conference.

panel

(l to r) Dick Stafford, Joel Carlson, Matt Headley, Julie Gawrych, and LaDonna Mead

Julie Gawrych, a guardian ad litem in Norfolk, stressed the need to make an effort prior to the pre-hearing conference to obtain information from the caseworker and other individuals and meet with the client. Matt Headley, a parents attorney in Norfolk, stated that the pre-hearing conference does not eliminate the duty of parents’ attorneys to “fight the good fight” for their client when it is necessary. But, he added, parents’ attorneys should not automatically resist procedures like the pre-hearing conference and should realize that they can actually quicken the pace in returning their children to their clients’ care by encouraging their clients’ participation.

Pre-Hearing Conference Training

In Madison County, when an abuse/neglect petition is filed, efforts are made to appoint an attorney as guardian ad litem who has the calendar availability to research the case and meet with clients prior to the pre-hearing conference. In doing so, the pre-hearing conference produces a greater flow of information and knowledge about the facts of the case. Dick Stafford, who has acted as facilitator in multiple pre-hearing conferences, views pre-hearing conferences as a communication process where the parties can find and potentially fix the problems. To do so, the parties must have spent substantial time in reviewing and researching the facts of the case as well as the family’s background and issues.

The 7th District team developed this training with the intent to educate more members of the legal community about the pre-hearing conference process in order to increase their involvement. Prior to the training, Judge Stoffer sent a letter to all court-appointed attorneys in abuse/neglect cases encouraging them to attend the 3-hour training, and in the future intends to appoint attorneys who attended this training session or watched the session on video at a later date.

The Dangers of Foster Care?–Should New Study Findings Lead to Overhaul of Child Removal Protocol?

The Dangers of Foster Care?–Should New Study Findings Lead to Overhaul of Child Removal Protocol?
The Dangers of Foster Care?–Should New Study Findings Lead to Overhaul of Child Removal Protocol?

Natalie Nelsen, J.D. | 03/19/2008

In a provocative new study, MIT professor Joseph J. Doyle asserts that children who are “at the margin of placement” suffer from “higher delinquency rates, along with some evidence of higher teen birth rates and lower earnings” when removed from their home, than those children allowed to remain at home.1  The study begs the question: should children from troubled homes, who are on the borderline for placement, be removed from their families?  The answer, at least, initially seems to be the ever ambiguous, “it depends.”

The most important concern in child welfare cases is child safety.  Although the Nebraska Department of Health and Human Services is committed to “family centered practices,”2  the Nebraska Statutes emphasizes the state’s commitment to child safety.  The juvenile code “shall be construed to…assure the rights of all juveniles to care and protection and a safe and stable living environment.”3  Therefore, any potential negative effects of foster care placement are moot when the safety when the safety of the child is threatened.  The various state agencies all serve to protect the health and safety of children, and this study should in no way compromise those objectives.  Agencies should continue to act cautiously in cases of child maltreatment, and always err on the side of caution until a secure home environment is established.  However, the study does raise some interesting theories regarding more marginal placements.

When juvenile health and safety is not of immediate concern, removal may not always be the best option.  The Nebraska Statutes memorialize Nebraska’s dedication to maintaining intact families.  To accomplish the goals of juvenile care and protection, the state desires “to achieve these purposes…in the juvenile’s own home whenever possible, separating the juvenile from his or her parent when necessary for his or her welfare, the juvenile’s health and safety being of paramount concern.”4   Therefore, unless necessary, children should remain with their family and receive services in home.  While many agencies have long held this practice ideal, there is now some interesting empirical data to support the theory.

Professor Doyle’s study analyzed child welfare cases of over 15,000 youths, between 1990 and 2001.5   The case examined only those cases which were assigned case managers on a rotating basis, which excluded sexual abuse and drug exposure cases.6  Further, to make sure that the children were of appropriate age for either employment or teen motherhood and delinquency, only children who were between the ages of 5 and 15 at the time of the initial abuse investigation were included.7   The study concluded that, with regards to juvenile delinquency, teen motherhood, and job earnings, “large benefits to foster care placement are unlikely for children on the margin” and that that these children appear “to have better longer-term outcomes when they remain at home.” 

The study’s limitations make widespread abandonment of current placement practices inappropriate.  The study focused on Illinois, “where placement of children with family members is more popular than the nation as a whole,” making it difficult to compare to data from other states.8   Also, the study only contains data from Illinois, meaning if any families chose to leave Illinois, their data would not be added to the study.9  The author acknowledges that this could be part of the reason for the increase in teen pregnancy and delinquency.10  Further, the effects of foster care placement on younger children remains unknown, since the statistics on teen motherhood and delinquency are “found in the 10-15 age group.”11  Finally, and perhaps most concerning is that the study did not take into account the length of time that the children spent in foster care.12  Perhaps children spending the least amount of time in foster care did not experience the increased delinquency and teen pregnancy rates reported by the study, but further research is required. 

It is interesting to note that this study may, in some ways, stand in contrast to a study published in Pediatrics in 2001,13  which found that “youth who reunify with their biological families after placement in foster care have more behavioral and emotional health problems than youth who do not reunify.”14   However, a direct comparison between these two studies is impossible, since the Pediatric's study involved children who were removed and then returned to their homes, while Professor Doyle’s study compared children who were removed with those who remained at home.  However, this study further adds to the complexity of the problem facing child welfare workers.  In those cases where children must be removed from the home, their ability to succeed upon reunification seems contested.  The value of these studies appears to be in continuing the discussion of best practices for children in the child welfare system.  As the authors of the 2001 study conclude, “these studies perhaps best underscore the mixed emotions, concerns, and perspectives that need to be balanced by all in making weighty decisions that so pervasively affect the lives of children and families.”15

It is critical to remember that Professor Doyle’s study does not draw conclusions about the clear cut cases for removal, where children are in imminent or immediate danger.  Instead, the study focused on the group at the margin, and thus the conclusions are not necessarily valid for cases on either extreme.  Without more research, the study, although interesting, should not be used to support drastic changes in child welfare case management.  As the author himself concludes, it is because of the extreme cases of child maltreatment potentially averted by removing children that “child welfare agencies may be willing to trade off higher delinquency, teen motherhood, and unemployment rates for slightly lower levels of serious abuse.”16  While the study provides the motivation to continue commitment to keeping families intact whenever possible, that evaluation must be made on a case by case basis, and must not sacrifice the safety and wellbeing of society’s most vulnerable members.

Youth in Court–More than Just a Good Idea

Youth in Court–More than Just a Good Idea
Youth in Court–More than Just a Good Idea

Natalie Nelsen, J.D. | 03/19/2008

Child welfare cases are about doing what is best for the youth involved.  Youth need and deserve to be part of that process, and court hearings are one way to do that.  Having children involved in court hearings helps the court learn more about the children than what is presented in the reports.  The youth makes the case more real for the court and as the case progresses, the court can see that the child is getting older and needs permanency.  When youth are present at court hearings, the court is more likely to focus on the youth’s needs rather than focusing only on what the parents have or have not accomplished.

Having youth at court hearings benefits not just the court, but also the youth.  It gives youth the opportunity to understand the court process by seeing firsthand the court proceeding.  Active participation also gives youth a sense of control over the decisions being made in his or her life.

Major national child welfare organizations agree that youth should participate to some extent in their child welfare hearings.  The Pew Commission on Foster Care report, Fostering in the Future: Safety, Permanency, and Well-Being for Children in Foster Care, recommends that foster youth must be part of the proceedings that will forge their future - youth should receive notice of, have a right to be present at, and be encouraged to attend proceedings in their dependency cases.  In a recent Home At Last survey, entitled My Voice, My Life, My Future, 73% of youth stated that they attend court only some of the time.  29% reported that they never attend court, 20% reported attending most of the time and 18% reported always attending court hearings.1

According to the Resource Guidelines published by the National Council of Juvenile and Family Court Judges, a youth should be present at some point for the judge to observe them, at least during the review and permanency planning hearings.  If the child is able to present information to the court on their needs and desires, or if they have questions or concerns, they should be permitted to address the court.  In addition, during preliminary protective hearings, adjudication, disposition and termination hearings, a youth may be present depending on factors including age, physical and emotional condition of the child, and potential trauma to the child.2  The ABA also endorsed these Guidelines.

Recent federal legislation makes youth participation in court a requirement for Title IV(e) Funding.  It requires that, “…procedural safeguards shall be applied to assure that in any permanency hearing held with respect to the child, including any hearing regarding the transition of the child from foster care to independent living, the court or administrative body conducting the hearing consults, in an age-appropriate manner, with the child regarding the proposed permanency or transition plan for the child.”3

Some states address youth’s participation in court in their state statutes.  A recent ABA article compiled the following examples4:

Kansas directs the court to hear testimony of youth 14 years or older if the youth requests it and is of sound intellect.
Minnesota states that children have the right to participate in all proceedings.
New Mexico allows a child 14 and older to be present in court and requires the court to find a compelling reason and state the factual basis if the child is to be excluded.  A child under 14 is permitted to be in court in New Mexico, unless the court finds it’s in the best interest of the child to exclude her
Florida only restricts a child’s presence in court if the court finds the child’s mental or physical condition or age is such that appearing in court is not in the child’s best interests.  
Virginia requires notice and the ability of a child 12 years of age or older to participate in foster care review hearings
California lists a youth’s ability to attend court hearings and speak to the judge as one right for children in foster care. 
Michigan requires youth over age 11 to be notified of review, permanency and termination of parental rights hearings.
Practice Considerations for involving youth in court proceedings5

Many teams in the Initiative are working to develop protocol for children attending court hearings.  Protocols vary widely and it's difficult to know what is the best procedure given the variation in children and the lack of data studies on this topic.  Here are some tips for your team to consider when developing your protocol:

Age and developmental level of the child– The court can gain insight from even the youngest children by observing the child’s demeanor, appearance, and interaction with biological and/or foster parents.  Older children may be able to give the court additional information or correct faulty information by having the opportunity to testify in court or in chambers.
Youth’s routine – Court hearings generally take place during school hours, so school-age youth may have to miss school to attend.  It may be helpful to schedule hearings during the youth’s study hall or home room, or near the end of the day to minimize the amount of school time the youth needs to miss.  It is also important to avoid continuances as these may require the child the child to miss multiple days of school. Nonetheless, although school attendance should be a priority for all children and youth, occasional absences to attend court hearings, will often be in the child’s best interests.
Logistics: time and transportation – In order to allow youth participation, courts may need to allow more time for hearings.  Arrangements will have to be made to have the youth transported to court hearings.  Address in advance of the hearing who is responsible for making transportation arrangements so that transportation isn’t a barrier to youth participation.   
Type of hearing – When the judge and parties feel that the information presented in court will not harm the youth and that the youth’s input is vital, have the youth present throughout the entire hearing without restricting what the youth may hear. If having the youth present for the entire hearing may be damaging, have the youth wait in a waiting area for the hearing and come into the courtroom only when the youth’s input is required.
Preparing the child – Arrange for the youth to visit to the courthouse and meet the judge when hearings are not occurring.  Explain the hearing process, who takes part in hearing and what each person’s role is so that the youth knows what to expect on the day of the hearing.