H O W T O A N S W E R T H E M O S T C O M M O N Q U E S T I O N S

P r e s e n t a t i o n f o r K i v e l & H o w a r d , A u g u s t 2 0 1 3

Child Welfare Calls to LegalShield

DHS “just wants to talk”

Trickier than advice in criminal cases, where you would advise “Don’t talk!”

Part of safety assessment is determining caregiver’s “protective capacity.” Cooperating with DHS factors into “protective capacity” determination.

But assert 5th Amendment silence if alleged sex abuse, physical abuse or severe neglect (medical, starvation).

DHS required to try to work with parents before removing kids.

What to tell parents if DHS “wants to talk”

Many cases screened out at investigation with no further action.

Where possible, DHS is required to create “safety plan” for child to stay in home.

Usually not whole story if child pulled out of home for “no reason.”

DHS took

my child

Quick Walk through Court Process

Shelter Hearing – 24 judicial hours

Pretrial Conference – 30 days (admit/deny)

“Trial” (judge - no jury) – 60 days (jurisdiction & disposition)

Citizen Review Board – 180 days

Permanency Hearing – 12 months (safe to return?)

Termination? – 15 of 22 months in foster care

Shelter Hearing - ORS 419B.180

Review reasons for removal – Petition with Affidavit

Probable cause?

Standard of proof = “Preponderance of evidence”

Placement? Return unlikely!

Court appointed attorney

Grandparents can attend

What to Tell Parents

Will find out basic information at court & more in about 1 month.

Court will appoint an attorney.

No LegalShield trial defense coverage –“domestic related” & also not a trial.

DHS required to work with parents to help kids go home. 64.1% reunified.

What to Tell Concerned Grandparents

Guardianship?

Third-Party Custody?

Report to DHS?

Probate Guardianship Third-Party Custody

ORS 125

Focuses more on need of child for protection than who does protecting

“Visitor” may investigate

Easier to change guardian

Annual report to court

ORS 109.119 also applies

ORS 109.119

Focuses more on relationship: “Parent-child” or ongoing personal within 6 months before filing.

Harder to change custody

Custody or visitation

Non-DHS Options

DHS Took My Grandchildren

Attend court – best source of information

Make written request to DHS for hearing notice – send by certified mail

DHS must consider relatives for placement

Early involvement key!

Need to retain attorney if want to intervene

DHS Won’t Do Anything

•• May be working with family

•• Continue to report

•• Reporting doesn’t always mean removal

Grandparents as Foster Parents

Placement ≠ Custody

Foster care means LOTS of rules

Judge can’t direct placement*

Almost impossible to get back child if “decertified” as foster home

CANS (Child and Adolescent Needs and Strengths) Assessment determines foster care rates

Work with child’s attorney &/or CASA

Harder for immediate placement if live out of state (ICPC)

What to Tell Foster Parents

• Long-term preference is for relatives

• Current caretaker preference requires 12 months consecutive in foster home

• Involuntary termination of parental rights seems harder these days

• Need to retain attorney if want limited participation/intervenor status

Indian Child Welfare Act Considerations

Standard of proof = clear and convincing evidence (25 USC § 1912(e))

Applies if child tribal member or eligible for membership & parent is member

Tribe is a party “Active efforts” required to

reunify Guardianship preferred to

adoption No LegalShield referral to

tribal court

ICWA Means Additional Resources

Don’t ask – make it a statement:

“If you have Native American heritage, additional resources may be available to help your family.”

Blood quantum/tribal membership isn’t always necessary.

Tribal court is “real court.”

Court Appointed Special Advocates

ORS 419A.170 governs CASA roles:

• Investigate

• Advocate

• Facilitate & Negotiate

• Monitor

Legal party in juvenile dependency

Not enough for every case

Questions?

Resources

Juvenile Court Improvement Project (JCIP) Benchbookhttp://www.ojd.state.or.us/JuvenileBenchBook.nsf

DHS Child Welfare Procedure Manualhttps://www.dhs.state.or.us/caf/safety_model/procedure_manual/index.html

Oregon’s Legal Guide for Grandparents and Other Relatives Raising Childrenhttp://extension.oregonstate.edu/fch/sites/default/files/documents/legal_rapp_09.pdf