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NACC Red Book Training. Sunday , August 25, 2013 Atlanta, Georgia Presenter – Ann M. Haralambie Ann.Haralambie@azbar.org. Agenda*. 9:00 Context and Background on Abuse 9:45 Legal Framework 12:15 Lunch 12:45 Legal Framework, cont. 1:45 The Child Welfare Legal Process

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NACC Red Book Training


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    1. NACC Red Book Training Sunday, August 25, 2013 Atlanta, Georgia Presenter – Ann M. Haralambie Ann.Haralambie@azbar.org (c) NACC 2013

    2. Agenda* • 9:00 Context and Background on Abuse • 9:45Legal Framework • 12:15 Lunch • 12:45 Legal Framework, cont. • 1:45 The Child Welfare Legal Process • 3:00 Roles and Duties of Counsel • 4:30 Adjourn * morning and afternoon breaks at convenient times (c) NACC 2013

    3. Context and Background on Abuse (chapters 2-8) (c) NACC 2013

    4. Physical Abuse • Proof of the abuse • Short- and long-term ramifications • Any special care, ancillary services needed • Parent’s ability, willingness to provide care • Availability of specialized services (c) NACC 2013

    5. Sexual Abuse • Physical findings • Absence of findings • History • Context of molestation (c) NACC 2013

    6. Neglect • Physical neglect • Medical neglect • Failure to thrive • Educational neglect (c) NACC 2013

    7. Mental Health Evaluations • Clinical vs. forensic evaluations • Qualifications of the evaluator • Circumstances, methods of the evaluation • Effect of illness on ability to care for child • Importance of treatment, rehabilitative efforts (c) NACC 2013

    8. Relationship Evaluations • Specific nature of parenting deficiencies • Prognosis and recommendations • Time estimate for remediation • Treatment targeting parenting problems (c) NACC 2013

    9. Child Development • Child’s early experiences with caretakers lay foundation for future functioning • Attachment, separation, and loss are important to child’s security and trust • Risks of removal vs. leaving child in home • Consider alternative interventions • Communicate at child’s level (c) NACC 2013

    10. Investigative Interviewing of Children • Investigative interviewing to get facts • Ask open-ended questions • Begin with interview instructions • I don’t know, I don’t understand, you’re wrong • Interviewer doesn’t know the answers • Promise to tell the truth • Rapport-building and narrative practice • Transition to substantive interview (c) NACC 2013

    11. Interviewing and CounselingChild Clients • Not necessarily to get adjudicative facts • Build rapport, explain role, confidentiality • Setting should be comfortable for the child • Keep all promises; don’t over-promise • Communicate at the child’s level • Duty to counsel the child (c) NACC 2013

    12. Family Dynamics • Treatment needed for child, parents, and child-parents together • Evidence-based practice • Parent-Child Interaction Therapy • Abuse-Focused Cognitive Behavioral Therapy • Observation of parents-children together • Evaluations at outset provide a baseline for ongoing evaluation of change (c) NACC 2013

    13. Cultural Context • Understand your own cultural/subcultural assumptions and perceptions • Understand the child in cultural context • Why do parents and children respond as they do? • Family’s cultural framework remains with the child even while in out-of-home care • Placement must meet contextual needs (c) NACC 2013

    14. Legal Framework (chapters 10-12, 15) (c) NACC 2013

    15. Statutes:CAPTA • Requirements for receiving federal funding: • Mandatory child abuse reporting • Appointment of trained GAL for child • Funds provided for child abuse prevention programs, abuse report investigations, case management and services, training (c) NACC 2013

    16. Social Security ActTitles IV-B and IV-E • Provides federal funding for foster care, prevention and family preservation services, and court improvement • Prerequisite to funding is comprehensive state plan with specific provisions • Adoption subsidies funded in eligible cases [many provisions referred to by separately named acts] (c) NACC 2013

    17. ASFA(Adoption and Safe Families Act) • Subject to exceptions, the agency must make reasonable efforts to maintain the child in the family • Services aimed at preventing unnecessary removal • Explore alternatives to placement (Consider removing the danger, not the child) (c) NACC 2013

    18. ASFA (cont.) • Child’s health & safety the paramount concern • Reasonable efforts not always required • Aggravated circumstances • Conviction of certain crimes • TPR of another child (c) NACC 2013

    19. ASFA (cont.) • Agency must establish detailed case plan • Description of child’s placement • Schedule of services for child and family • Independent living plan for children 16+ • Permanency plan (If not reunification, then must include description of the reasonable efforts made or why not needed) (c) NACC 2013

    20. ASFA (cont.) • Case reviews required every 6 months • Permanency planning hearing at least every 12 months during foster care • Usually requires TPR action if child has been in foster care for 15 of the most recent 22 months • Concurrent planning permitted (c) NACC 2013

    21. ASFA (cont.) • Exceptions to filing TPR, 42 U.S.C. § 675(5)(E): • At the option of the State, the child is being cared for by a relative; • Documented compelling reason for determining that TPR would not be in the best interests of the child; or • Reunification services have not been provided although reasonable efforts were required (c) NACC 2013

    22. MEPA-IEP(Multiethnic Placement Act/ Interethnic Adoption Provisions) • Prohibits discrimination on the basis of race, color, or national origin in foster care licensing and foster and adoptive placements • Prohibits delay in placement • Requires recruitment of ethnically diverse foster and adoptive placements • Does not supplant ICWA priorities • Provides private enforcement cause of action (c) NACC 2013

    23. Chafee Act(Foster Care Independence Act) • Independent living programs for foster youth • Optional Medicaid coverage for former foster youth 18-21 • Assistance to youth who aged out of foster care • Financial, housing, counseling, employment assistance • Educational and training vouchers • Funding contingent on states providing various services to youth, foster and group homes, and case workers (c) NACC 2013

    24. Fostering Connections Act • Permits subsidized kinship guardianships • Identification of and notice to relatives within 30 days from child’s removal • Case-by-case waivers of non-safety related licensing rules for kinship placements • Title IV-E funding for certain youth in state foster care from 18-21 (c) NACC 2013

    25. Fostering Connections (cont.) • Transition plan during 90 days prior to emancipation from foster care • Educational stability where in the child’s best interests; federal reimbursement for travel to pre-placement school • Medical service plans, continuity of medical care and records • Preference for keeping siblings together (c) NACC 2013

    26. Fostering Connections (cont.) • Permits Indian tribes to access Title IV-D money directly by submitting plan for delivery of child welfare services • Increases adoption subsidies for special needs and older foster children (c) NACC 2013

    27. ICWA (Indian Child Welfare Act) • Applies to “Indian child” Unmarried person under 18 who • is a member of a tribe, OR • eligible for membership AND the child of a tribal member (eligibility in sole judgment of tribe) • Must be federally recognized tribe or Native Alaskan Village • Proceeding for foster care placement, TPR, adoptive or preadoptive placement (c) NACC 2013

    28. ICWA (cont.) • Exclusive tribal jurisdiction • Child is domiciled on the reservation • Child is a ward of the tribal court • Concurrent jurisdiction—transfer except • Parental veto • Good cause to the contrary • Notice and right to intervene for tribe • “Active efforts” required (c) NACC 2013

    29. ICWA (cont.) • Expert testimony of likely serious emotional or physical damage to the child • Foster placement preferences (unless order changed by the tribe or good cause) • Member of extended family • Foster home licensed or approved by tribe • Indian foster home licensed by non-Indian licensing authority (c) NACC 2013

    30. ICWA (cont.) • Standard of proof • Foster care: clear and convincing evidence • TPR: beyond a reasonable doubt • Adoption placement preferences (unless order changed by the tribe or good cause) • Member of extended family • Member of child’s tribe • Member of another Indian tribe (c) NACC 2013

    31. Mississippi Band of Choctaw Indians v. Holyfield Federal definition of domicile in an ICWA case requires that the child of persons domiciled on an Indian reservation is also domiciled on the reservation, despite having been born off the reservation and having been placed for adoption without ever being on the reservation. Parents can’t circumvent ICWA. (c) NACC 2013

    32. Meyer, Pierce, and Prince Parents have a fundamental liberty interest in directing the upbringing of their children. (Meyer v. Nebraska, Pierce v. Society of Sisters, Prince v. Massachusetts) (c) NACC 2013

    33. Wisconsin v. Yoder Compulsory education laws which required Amish children to go to school past the 8th grade violated parents’ First Amendment rights of freedom of religion. (c) NACC 2013

    34. Troxel v. Granville There is a presumption that fit parents can make decisions that are in the best interests of their child. (c) NACC 2013

    35. In re Gault Fourteenth Amendment due process rights apply to delinquency case. Neither the Fourteenth Amendment nor the Bill of Rights is exclusively for adults (c) NACC 2013

    36. Tinker v. Des Moines Ind. Comm. School District Students have First Amendment rights. (c) NACC 2013

    37. Bellotti v. Baird Pregnant girls cannot be required to obtain parental consent for an abortion without affording a judicial bypass hearing. (c) NACC 2013

    38. Parham v. J.R. Parents do not have absolute discretion to commit their child to a mental hospital; the child has a liberty interest in not being erroneously labeled mentally ill. There must be initial and periodic review by a neutral fact-finder, but it need not be a judicial hearing. The inquiry must probe the child’s background using all available resources. Parents have a high duty to recognize symptoms of illness, seek & follow medical advice. (c) NACC 2013

    39. Stanley v. Ill inois (1972) Striking down an irrebuttable presumption of unfitness, the Court held that fathers of children born out of wedlock have a due process and equal protection right to a hearing prior to removal of their children from their custody. (c) NACC 2013

    40. Quilloin v. Walcott (1978) Limited the constitutional rights of fathers of children born out of wedlock to those who had evidenced a substantial interest in their children’s welfare. An uninvolved father’s consent to the stepparent adoption of his child is not necessary if the adoption would be in the child’s best interests. (c) NACC 2013

    41. Caban v. Mohammed (1979) Struck down as violative of equal protection a statute requiring the consent to adoption of the mother, but not the father, of a child born out of wedlock. (c) NACC 2013

    42. Lehr v. Robertson (1983) Upheld constitutionality of a statute treating fathers and mothers of children born out of wedlock differently concerning the necessity for consent to adoption when it provides a putative fathers registry, by which a father could obtain rights equivalent to those of the mother. (c) NACC 2013

    43. Michael H. v. Gerald D. (1989) Upheld constitutionality of conclusive presumption against a putative father who sought to establish paternity in the face of the desire of the mother and her husband, the presumed father, to raise the child as their own. (c) NACC 2013

    44. The Law after Stanley, Quilloin, Caban, Lehr, and Michael H. An unwed father who demonstrates a full commitment to the responsibilities of parenthood is entitled to due process before his parental rights may be terminated. However, the mere fact of biological parentage is not entitled to constitutional protection, and a man may be denied standing to establish paternity for a child born to a married mother. (c) NACC 2013

    45. Lassiter v. Department of Social Services Indigent parents are not constitutionally entitled to appointed counsel in all termination cases. (c) NACC 2013

    46. Santosky v. Kramer Termination grounds must be proven by clear and convincing evidence. (c) NACC 2013

    47. M.L.B. v. S.L.J. Indigent parent appealing a TPR case is entitled to a court record on appeal at public expense as a matter of due process. (c) NACC 2013

    48. Smith v. O.F.F.E.R. There is a significant constitutional difference between the foster family relationships and natural family relationships, even when the child being returned to the natural family has been with the foster family for a long time. NY’s procedures were not constitutionally defective. (c) NACC 2013

    49. DeShaney and Youngberg The state has no duty to protect a child not in state custody from conduct by private parties. However, when a person is institutionalized and dependent on the state, the state must provide safe conditions. (DeShaney v. Winnebago County Dept. of Social Serv.s, Youngberg v. Romeo) (c) NACC 2013

    50. Suter v. Artist M. The Adoption Assistance and Child Welfare Act’s requirement that the state make “reasonable efforts” did not create a privately enforceable cause of action. (c) NACC 2013