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District Court Judges’ Conference October 21, 2005

District Court Judges’ Conference October 21, 2005. Case and Legislative Update: Juvenile Law Janet Mason Institute of Government. Abuse, Neglect, Dependency. Pre-Petition. DSS conducts investigative assessment or family assessment

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District Court Judges’ Conference October 21, 2005

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  1. District Court Judges’ ConferenceOctober 21, 2005 Case and Legislative Update: Juvenile Law Janet Mason Institute of Government

  2. Abuse, Neglect, Dependency

  3. Pre-Petition • DSS conducts • investigative assessment or • family assessment • If DSS finds abuse or “serious neglect,” name → Responsible Individual List • Appeal is to: • DSS Director • (District Attorney) • District Court • Court of Appeals

  4. Hearing on Petition to Expunge Name from List • Must close hearing at party’s request • No right to appointed counsel • DSS has burden of proof • Standard = preponderance of evidence • Rules of evidence (sort of) apply • Hearing is stayed if juvenile petition filed • Order must be entered within 30 days

  5. Hearing on Petition to Expunge • DSS director has found that substantial evidence supports both • determination of abuse or serious neglect & • identification of responsible individual • Substantial Evidence = “Relevant evidence a reasonable mind would accept as adequate to support a conclusion” • Issue for Court = correctness of DSS director’s determination and identification

  6. Jurisdiction • Court may not order nonsecure custody when no petition has been filed [KCG, p 2] • Expiration of summons → lack of • Personal jurisdiction and • Subject matter jurisdiction [ABD, p 7]

  7. Jurisdiction • Where initial petition was not verified, court lacked subject matter jurisdiction at review hearing [TRP, p 4] [with dissent] • No legal authority to retain jurisdiction in particular case [LL, p 5]

  8. Competing Custody Orders 2005-320 (H 801) If both Ch. 7B (juvenile) and Ch. 50 (civil) custody orders exist, • The juvenile order controls, and • The civil order is stayed.

  9. Competing Custody Orders 2005-320 (H 801) Court in the juvenile case may • Consolidate the cases • Dissolve the stay • Transfer either case to the district of the other case, after consulting the court in that district

  10. Terminating JurisdictionS.L. 2005-320 (H 801) • When does a juvenile case end? • What is status of child and parties when case ends? [Dexter, 2002] • Can the court turn a juvenile order into a civil custody order?

  11. YES, court may modify or create a Chapter 50 custody order if • Permanent plan = custody with a parent, relative, or other person • Court makes Ch. 50 findings • State intervention through juvenile court is no longer required

  12. Guardian ad Litem for Child • Failure to appoint GAL for child, when required, is reversible error (even if attorney advocate is appointed). [RAH, p 11]

  13. Guardian ad Litem for Parent[Petitions & Actions Filed Before 10/1/05] • Allegation of dependency caused by substance abuse, mental illness, etc., always • Duty to appoint guardian ad litem [DDY and CB, p 2]

  14. Guardian ad Litem for Parent[Petitions & Actions Filed Before 10/1/05] • Without allegation of dependency, GAL may or may not be required. • Is required if case is clearly focused on parent’s incapacity [TW, P 8] • Not required just because some evidence relates to substance abuse [AsLG, p 8; OC, p 12]

  15. Guardian ad Litem for ParentPetitions & Actions Filed On or After 10/1/05 Court may appoint GAL for a parent, per Rule 17, if the court finds reasonable basis to believe that the parent: • is incompetent or has diminished capacity and • cannot adequately act in his or her own interest.

  16. GAL for Parent– on or after 10/1/05 • Allegations not determinative • Court may appoint GAL on own motion or motion of party • May not appoint parent’s attorney as GAL • GAL has privilege & confidentiality same as attorney • GAL has authority to • Help parent enter consent order • Facilitate service of process • Assure necessary pleadings are filed • Help ensure procedural due process

  17. Appointment of Counsel for Parent • In every abuse, neglect, dependency case, summons or notice must show appointment of “provisional counsel” • At first hearing, court affirms the appointment unless the parent: • Does not appear at the hearing, • Is not indigent, • Has retained counsel, or • Waives the right to counsel.

  18. Fees of CounselAppointed for Parent on or after 10/1/05 SL 2005-254 • Court may require parent to pay fees if child is adjudicated abused, neglected, or dependent, or parent’s rights are terminated. • Must consider parent’s ability to pay • Must file judgment immediately if parent fails at disposition to pay fees ordered for parent’s counsel or child’s attorney or GAL

  19. What about the “innocent parent”? [JAG, p 2] • Father harmed child while mother away • Only mother appealed • Court held: • Findings relating to mother were not supported by evidence • Child still properly adjudicated neglected because harmed by father • Giving custody to DSS at disposition was abuse of discretion

  20. Nature of the Proceeding • Initial juvenile proceeding: “Is the child a ‘neglected juvenile’?” • Termination of parental rights” “Did the mother neglect the child; is it likely mother would neglect the child if custody is returned to her?”

  21. Are these orders moot for purposes of appeal? • Order adjudicating neglect and placing child in DSS custody, after the court returns full custody to parents [AK, p 3] • Order terminating parent’s rights, when child dies while appeal is pending [CC, p 13]

  22. Priority for Relative Placement Must place child with relative willing and able to provide proper care & supervision in a safe home, unless court finds the placement is contrary to child’s best interest. • Nonsecure Custody – GS 7B-505 and -506 • Disposition – GS 7B-903 Also: [LL, p 5] • Review hearings – GS 7B-906 • Permanency planning hearings – GS 7B-907

  23. Sufficiency of Findings at Review or Permanency Planning • Fact that parent has made some progress does not prevent ceasing efforts • Best interests of the child are paramount • Must consult GS 7B-906 or -907 and include all findings required by statute [LL and TK, p 5; CEL, p 6]

  24. Termination of Parental Rights:Service of Process • Rule 5 service of motion and notice available only if original action commenced less than two years ago [PLP, p 7] • Child’s guardian ad litem may waive service of process [JB, p 9] • Parent is not aggrieved party for purpose of defect in service on child [JB, p 9]

  25. Termination of Parental Rights:Grounds SL 2005-146 adds: • Parent has committed murder or voluntary manslaughter of child’s other parent • Petitioner may prove conviction or elements • Court must consider whether crime involved self-defense, defense of others, or other justification

  26. When is evidence clear, cogent, convincing, and sufficient to establish ground? • Neglect & Willfully leaving child in care . . . PLP, p 7 – affirmed, with dissent DM, p 12 – affirmed, with dissent JW, p 13 – affirmed, with dissent CC, p 13 – reversed

  27. Incarcerated Parent[DJD, p 14] • COA affirmed trial court’s conclusion that multiple grounds existed • Focused on father’s • extended lack of contact and • failure to do what he was able to do while incarcerated

  28. Motion for Funds for Expert Indigent party must show reasonable likelihood that expert • would assist substantially in trial preparation, or • would assist materially in the case, or • is necessary for a fair trial. [DR, p 8; JB, p 9]

  29. Trial Court Authority / Discretion Extend to: • Continuances • Limiting discovery (denial of motion to interview child) • Excluding parent from courtroom during child’s testimony • Directing party’s attorney to draft order on court’s behalf [JB, p 9]

  30. Prior Orders • At adjudication in termination case, court may take judicial notice of prior orders • Even if they involved lower standard of proof. • Court is assumed to disregard incompetent evidence. • Court still must make “independent determination” that a ground exists. [JB, p 9]

  31. Termination Petition or Action Filed On or After 10/1/05 • At disposition, court must determine whether terminating parent’s rights is in child’s best interest, considering: • Child’s age • Likelihood of adoption • Whether tpr will help achieve permanent plan • Bond between parent and child • Quality of child’s relationship with proposed adoptive parent, guardian, or custodian • Any other relevant factor

  32. AppealsProceedings Filed on or after 10/1/05 • Time for giving notice of appeal = 30 days • Lawyer for appealing party • Must sign the notice of appeal • May give notice of appeal only if directly instructed by client to do so after conclusion of proceeding • Attorney advocate must sign notice of appeal when juvenile appeals

  33. Proceedings Filed on or after 10/1/05 An order may be appealed only if it: • finds absence of jurisdiction • determines the case, precludes later appeal • is initial disposition (appeal includes adjudication) • changes custody (other than nonsecure) • ceases reunification efforts (*note timing) • grants or denies petition or motion to terminate parental rights

  34. Appeal of Order Ceasing Reunification Efforts • Party may give notice in court or in writing within 10 days of hearing, to preserve issue for appeal • Parent may appeal • when appealing later termination order, or • “within 180 days of the order” if no termination motion or petition is filed • Guardian or custodian may appeal “immediately”

  35. Jurisdiction During AppealSupreme Court Affirms Stratton, Rejects Hopkins[ RTW, p 10; NB, p 11] • Court interpreted statutory language to say that trial court has jurisdiction to terminate parental rights during appeal of prior order • Court must have independent basis for termination • Holding applies only to actions and proceedings filed before 10/1/05

  36. Actions & Proceedings Filed On or After 10/1/05 During an Appeal: • Order on appeal may be enforced, unless stayed by trial or appellate court • Unless appellate court orders otherwise, trial court may continue to exercise jurisdiction & conduct hearings, except under Article 11 (TPR) • If appeal is of tpr order and case did not begin as abuse, neglect, or dependency, court may enter temporary orders affecting child’s custody or placement

  37. Statutory Time Limits

  38. Petitions & Actions Filed on or after 10/1/05 New Requirement • Disposition in abuse, neglect, dependency case must be • Immediately after adjudication • Completed with 30 days

  39. Petitions & Actions Filed on or after 10/1/05: If an order that is required to be entered within 30 days is not: • Clerk must schedule hearing for first juvenile session • Purpose of hearing = • Determine & explain reason for delay • Obtain clarification of contents • Order must be entered within 10 days after hearing

  40. Termination order entered 5 months after TPR hearing CJB, p 15 • Reversed • But not reversible per se • Appellant must show prejudice • Longer the delay, easier it is to show prejudice

  41. Termination hearing held more than 6 months after petition filed. DJD, p 15 • Not reversible error • Respondent caused part of delay • Respondent did not show prejudice

  42. Missing almost all deadlines, by from 2 days to 4 months CLC, p 15 • Not reversible error (one judge dissenting) • Respondent did not show prejudice

  43. Termination order entered 69 days after hearing DR, p 16 • Not reversible error • Respondent failed to show prejudice

  44. Review hearing order entered 9 months after hearing. LL, p 14 • Reversed • Prejudice in • Delay of appeal • Frustration of permanent plan • Parties left in limbo • Change in child’s attachment during delay

  45. Termination order entered two months after hearing. PLP, p 16 • Not reversible error • Respondent did not argue or show prejudice

  46. Five-month delay in entry of termination order SBM, p 16 • Not reversible error • Respondent failed to show prejudice

  47. Adjudication order entered 3 months after hearing • DSS filed termination petition 7 months after ordered to do so AsLG, p 17 • Not reversible error • Respondent failed to show prejudice • Court expressed “great reservation” about the “inexplicable” delays

  48. Adoption Consent(Fakhoury v. Fakhoury, p 17) Father, whose wife left him after he signed consent for step-parent adoption, did not establish that his consent was obtained by fraud.

  49. Delinquency Cases

  50. Accepting Juvenile’s Admission[TEF, p 18] • State Supreme Court, affirming Court of Appeals: • Before accepting juvenile’s admission, court at minimum must ask the 6 questions in 7B-2407. • Duty to give juveniles more protection than adults

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