State Court Child Welfare Proceedings- An Overview Howard Davidson, JD ABA Center on Children and the Law Washington, DC The Hon. Marguerite D. Downing Judge of the Los Angeles Superior Court
State laws vary on what is Abuse and Neglect Most reports allege, and subsequent investigations substantiate, Neglect (generally, for inadequate parental care or supervision) in 3 out of 4 cases! Many of these families have: a parent living in or near poverty, family members with substance abuse and/or mental health issues, and/or domestic violence from a violent adult in the home State laws vary as to whether only the police, or child protective services (CPS), can remove kids Removal then triggers the state court (dependency) process 2
Parental Unavailability to Care for a Child May Trigger a Report Parental absence, or incapacity, often leads to CPS intervention Parent may have been arrested and incarcerated Parent may be ill, hospitalized, otherwise physically incapable of caring for their child Most common for parents wanting to avoid CPS intervention: using informal kinship care -- or kin placement through a CPS safety plan But public child welfare may get involved if money, placement, or services are needed for helping child 3
Best for Parents: To Avoid Any Involvement in the Child Welfare System Often, there s no CPS/foster care involvement if: Informal care arrangements are made (e.g., mom places child in grandma s care) Powers of Attorney are used, or Private custody/guardianship court actions There s generally no attorney representation for parents in these private or informal situations, so parents usually have to rely on these alternative arrangements without advice of legal counsel 4
Discussion Scenario 1 Why Do Parents and Children Become Involved in the State/County Child Protection System? The Juan Hernandez case 5
1. Why Parents and Children Become Involved in State/County Child Protection Systems Juan Hernandez has been in the U.S. since 2009. He has two U.S. citizen children under three. In 2010 he was arrested for DUI. He pleaded guilty to the DUI charge (a misdemeanor) and completed a year of probation. His wife is a U.S. citizen and was recently in a serious car accident that has left her incapacitated. In May of 2014, Mr. Hernandez was pulled over on suspicion of DUI. He was not charged, but local law enforcement ran his fingerprints and sent them to the FBI and DHS. Immigration databases revealed that he is unlawfully present in the U.S. Local law enforcement is holding Mr. Hernandez on an ICE Detainer. Upon referral and intake with ICE, he discloses during the Risk Assessment process that he has two young children and that his wife is unable to care for them. He asks to call his wife s brother may be able to care for the children. 6
Questions for Discussion If taken into ICE custody, on what grounds could Mr. Hernandez s children end up in the state foster care system? What provisions of the Parental Interests Directive and other germane ICE memoranda (e.g. on prosecutorial discretion), does this fact scenario trigger? What can ICE do to help ensure that immigration enforcement activities do not unnecessarily impact Mr. Hernandez s parental interests? 7
Issues for consideration: Mandatory Detention or Release Eligible use of prosecutorial discretion (i.e. Alternatives to Detention (ATD)?) If necessary to detain, consideration of detention in area close to children and/or child welfare proceedings? Allowing him to make arrangements for care of children with his brother-in-law? [May avoid child welfare involvement, and facilitating participation in court hearings, etc.] Participation in court hearings? Visitation? If ordered removed, ability to make arrangement for care of the U.S. children (legal guardianships, etc.) Inform them of the availability of external NGO resources in the facility law library (WRC Toolkit) 8
When the State Places a Child in Foster Care The key decision factor, in police or CPS removing a child from home, should be safety of the child / facing imminent harm -- as compared to a private custody case, for example in a divorce, where the placement standard can be the best interests of the child When a child is removed, FEDERAL CHILD WELFARE LAW sets case requirements if the foster placement is federally-supported (Title IV-E, SSA) FEDERAL LAW requires a state court finding that reasonable efforts were made to avoid placement 9
The default child welfare system goal when kids are removed from home is reunification (a return to one or both parents) FEDERAL LAW requires child welfare to quickly search for relatives, not limited to those in U.S. AND THE LAW prioritizes placement of children with relatives, regardless of the ultimate case goal (which could be reunification or other permanent placement) Child welfare agencies can place children who would otherwise be in foster care with relatives across the border (some form of criminal background check & home study is often needed to assure safety) 10
The State Dependency Case Process FEDERAL LAW requires CPS to quickly file a petition in this court if a child is taken into foster care, unless the child is quickly returned home Under FEDERAL LAW, to authorize any federallysupported placement, the court must find that reasonable efforts were made to prevent placement FEDERAL LAW requires periodic reviews where the court can oversee the agency s continuing reasonable efforts for child permanency Parents have a right to an interpreter at all hearings 11
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Key Events in Dependency Cases Where Parents & Their Attorneys Are Critical Hearings Preliminary/Shelter Care Adjudicatory Dispositional Review Permanency Termination of Parental Rights Key Meetings Family Team Meetings Court Case Settlement Meetings/Mediation Case Plan Development (supposed to be done jointly by agency and parents) Agency Case Reviews 14
The First Hearing is Usually Called a Preliminary or Shelter Care Hearing at Which Parental Participation is Vital If parent is detained/incarcerated, why the parent should be present in court: If deportation is imminent, a parent s presence allows the court to obtain information regarding mother or father s future location and promotes an ability to communicate with either parent for possible reunification 15
Parental presence can help assure the court assists in properly providing Vienna and Hague Convention notices Presence assures that parent can obtain proper counsel representation and consult privately with their attorney Parental presence is needed so that the court can explain the judicial process and parent and agency responsibilities Parental presence is needed so that the court can make ICWA and paternity determinations. 16
Dependency Court Adjudicatory Hearing Determines whether a child is abused or neglected It is critical that parents participate in, and be represented by counsel at, this hearing Being adjudicated affects all that comes after A parent s continued involvement in the case, and contact with the child, affects whether it will lead to reunification or termination of parental rights Most parents get their kids back after completing specified services (as designated in their case plan & through further court hearing involvement) 17
Dependency Court Dispositional Hearing Might happen same day as, and immediately after, the adjudicatory hearing Court makes a decision as to whether to continue custody with the child welfare agency or with another adult, or to return child home Again, FEDERAL LAW requires a reasonable efforts inquiry at this hearing Timing of this hearing is not set by federal law, but rather by state law timeframes (e.g., within 30 days of adjudicatory hearing) 18
The Court s Case Review Process FEDERAL LAW prompts a review of cases every 6 months or more frequently, with continued inquiries about reasonable efforts to reunify or provide permanency parental participation here is important Both mothers and fathers are supposed to develop the case plan with the agency Fathers can lose rights if paternity is not established or if they re not involved in the life of their child FEDERAL LAW requires a 12-month Permanency Hearing at which, with exceptions, moving forward with parental rights termination (TPR) is addressed 19
Access to Parental Services, and Child Visitation, Are Essential If parent is detained/incarcerated visitation is essential because: It is an essential component of reunification Visitation with a parent is essential to a child s well-being Visitation aids in maintaining the parent/child bond 20
Children will act out in a variety of ways due to concern for parents, and having parental visitation helps their children understand the parent is OK Visitation should be ordered as a routine course of judicial action, and should not be denied simply because of detention ICE cooperation is vital because state judges don t believe they can order visits (or specific parental services) when parents are in federal custody, and there has often been difficulty in simply locating detained parents 21
Discussion Scenario 2 The Child Welfare Case Review Process The Mariela Jones case 22
2. The Case Review Process Mariela Jones is being held in an ICE detention facility pending removal. There is not yet a removal date for Ms. Jones. She has a number of minor drug possession offenses and her most recent conviction in 2014 was for possession of cocaine with intent to distribute. Her children are in the foster care system and she is currently in the reunification stage of her case. Her child welfare caseworker has ordered her to participate in drug treatment, parenting classes, and to regularly visit with her children. There is a review hearing scheduled in two months. 23
Questions for Discussion How might Ms. Jones detention impact her ability to participate in her reunification plan? What provisions of the parental interest directive does this fact scenario trigger? What can ICE do to help ensure that immigration enforcement activities do not unnecessarily impact Ms. Jones parental rights? 24
Issues for consideration: Detention in area close to children? Visitation? Participation in court hearings? Detention Center programming/any way to facilitate participation in services? 25
State Court Termination of Parental Rights (TPR) Proceedings FEDERAL AND STATE LAW sets a clock that can result in TPR petitions being filed based on the length of a child s stay in foster care (e.g., at 12, 15, 18 or 22 months) Separate grounds for TPR must be proven, and the court must find TPR to be in the child s best interests Most common TPR ground: Failure of a parent to complete child welfare agency case plan requirement TPR has been called the civil death penalty for parents so it s critical they participate in TPR hearings 26
How Parental Incarceration Affects the TPR Process In one-third of the states, incarceration alone is a ground for terminating TPR Being incarcerated hinders a parent from completing their Case Plan, which is the biggest reason for TPR and parents losing their kids If a parent is incarcerated, but comes to court, the parent can avoid TPR by waiving reunification services and creating a legal guardianship with a family, or designating an alternative caretaker, without permanently losing parental rights 27
Parents have a statutory right to be present at their TPR hearing as well as any jurisdictional hearing If child welfare agencies and state courts have access to detained parents, they can more easily create an appropriate Case Plan goal that does not include TPR To help avoid inappropriate TPRs, ICE could implement programs that include parenting classes and substance abuse prevention and treatment services 28
There is no U.S. case where a parent s immigration law violation, alone, supported TPR State courts often set a schedule for specific days to handle TPR proceedings regarding incarcerated parents and their children, but if a parent is in ICE or Federal custody, that generally can t happen Courts should create a uniform form/questionnaire that includes general information on the child and parent affected by immigration enforcement, and if deported where parent may be contacted, so that Case Plan services can be monitored 29
Discussion Scenario 3 Termination of Parental Rights Proceedings The Thomas Perez case 30
3. Termination of Parental Rights (TPR) Proceedings a/k/a the civil death penalty Thomas Perez came to the U.S. from El Salvador with his parents as a child. He is 25 years old and has one child with his U.S. citizen girlfriend. In 2013 he was arrested and convicted for disorderly conduct and being drunk in public. He was referred by local law enforcement to ICE and spent 30 days in ICE custody before he was released on bond. While Mr. Perez was in state custody related to his disorderly conduct charge, his child was removed from his girlfriend s care and placed in foster care based on allegations of neglect due to her mental health issues and substance abuse. 31
3. Cont. Since being released on bond Mr. Perez has broken up with his child s mother and has spent close to a year trying to regain custody of his child. He participated in alcohol treatment, drug testing, and was visiting with his child regularly. Part of his child welfare case plan included a requirement that he stay out of immigration detention and have a stable home for his child in the U.S. Twelve months into his child welfare case, Mr. Perez was close to reunifying with his child when he was removed from the U.S. to his native El Salvador. A month after his removal, the case plan goal for his child changed from reunification to adoption and the court has scheduled a termination of parental rights hearing and ordered that Mr. Perez be present for the hearing. 32
Questions for Discussion What provisions of the parental interest directive does this fact scenario trigger? Is there anything that the ICE officer could have done differently to prevent the need for Mr. Perez to be paroled back into the country? (e.g. stay of removal, prosecutorial discretion) 33
Issues for Consideration: Prosecutorial discretion Coordination of travel and case planning Facilitation of Return 34
Important State Appellate Court Decisions 1. When a detained or deported parent seeks to be reunited with her child, a child welfare agency retains an obligation to make reasonable efforts to reunify the family [In Re. Interest of Angelica L. and Daniel L. (Supreme Court of Nebraska, 767 N.W.2d 74, 6/26/09)] 2. Immigration status and resulting imprisonment, alone, are not grounds for TPR [In Re. Adoption of C.M.B.R. (Supreme Court of Missouri, 332 S.W.3d 793, 1/25/11); TPR later affirmed on other grounds 35
3. If a child enters foster care because of their mother s abuse or neglect, the non-custodial father must be provided a case plan and services by the child welfare agency, even though he does not reside in the U.S. [In the Interest of E.N.C. et al. (Supreme Court of Texas, 384 S.W.3d 796, 10/12/12)] [In re Doe (Supreme Court of Idaho, 281 P.3d 95, 6/20/12)] 36
Additional Resources State Parent Guides on the Court System www.americanbar.org/groups/child_law/what_we_do/ projects/parentrepresentation/parents_handbook.html California Dependency Court System Materials for Parents and Relatives (including videos) www.courts.ca.gov/cfcc-dependency.htm Fathers Guides to the Child Welfare System www.americanhumane.org/children/programs/fatherhoodinitiative/qic-fatherhood-toolkit/fathers-and-the-courts.html A Family s Guide to the Child Welfare System www.cwla.org/childwelfare/fg.pdf 37
Available in both print and interactive formats, in both English & Spanish, at: www.womensrefugee commission.org/ programs/migrantrights/parental-rights 38
Feel free to contact us at the ABA Center on Children and the Law with any questions or issues that come up howard.davidson@americanbar.org 202/662-1740 (Howard Davidson) Website: www.americanbar.org/child 39
Questions and Further Discussion 40