IX. What Are the Minimal Requirements for Hearings?

 

A. Why Is This an Important Issue?

Federal child welfare laws have been enacted to improve the quality and timeliness of dependency case decisions. A disaster, whether it is a simple loss of power or the total devastation of a courthouse, cannot be allowed to disrupt the proceedings of dependency courts that affect the safety, permanency, and well-being of children.

 

• Both state and federal law demand that courts proceed under specific and strict timelines and the occurrence of a disaster that disrupts court operations will not necessarily excuse states and courts from meeting such timelines.
• Aside from legal requirements, meeting the deadlines and avoiding long interruptions in child abuse and neglect cases is critical due to the child’s sense of time and need for permanency (Resource Guidelines, 1995; Flango, 2001).

 

The Adoption Assistance and Child Welfare Act of 1980, 42 U.S.C. §§ 620-629, 470-477, as amended by the Adoption and Safe Families Act (ASFA), is the principal federal legislation governing foster care and permanency planning for dependent and neglected children. This legislation specifically requires courts to take an active role in the oversight of abuse and neglect cases and to help ensure timely permanent placements for children. Oversight requires judges to safeguard the safety and well-being of children in foster care and to make timely decisions enabling their placement into permanent and stable homes. ASFA necessitates more timely, decisive, and substantive hearings, and more frequent court and administrative case reviews. 

These include:

• Reviews at least once every six months;
• Permanency hearings at least once every 12 months; and
• Petitions for the termination of parental rights by the time a child has been in foster care for 15 of the most recent 22 months.

 

Other legal deadlines commonly found in state statutes or court rules include:

 

• Deadlines for hearings to determine whether to continue children’s emergency removal from home—state laws set deadlines mostly ranging from 24 hours to five days after removal.
• Deadlines for filing child abuse or neglect petitions—state laws set deadlines mostly ranging from the date of the emergency removal hearing to two weeks afterward.
• Deadlines for the completion of the hearing to decide whether the allegations of the petition are true (most typically called the “adjudication,” “fact finding,” or “trial”), and the court will therefore assert its authority over the child—for children already removed from home, state laws set deadlines mostly ranging from 10 days after removal to 90 days after removal.
• Deadlines for the completion of the hearing to decide whether the state will be given custody of the child for placement into foster care—for children already removed from home, state laws set deadlines mostly ranging from 10 to 30 days after adjudication.
• Deadlines for the completion of termination of parental rights proceedings (TPR)—state laws setting deadlines for TPR are frequently complex but often require the completion of TPR as early as within five weeks after the filing of the TPR motion or petition.
 

Judicial timeliness is just as critical to achieving the goal of timely permanency for children whether or not a disaster has disrupted court operations. For that reason alone, it is important to make great efforts to meet all legal deadlines even in the event of a disaster. The harm to children from remaining too long in temporary foster homes is, if anything, compounded by the trauma of experiencing a disaster.

After Hurricanes Katrina and Rita, officials from affected states requested a number of waivers from statutory requirements for federal child welfare programs. Among other things, they asked about the possibility of extending times for reviews, permanency hearings, and termination of parental rights petitions. State officials were concerned that they would not be able to comply with these requirements due to the impact of the storms. The U.S. Department of Health and Human Services replied that it did not have the authority to grant waivers, but issued an information memorandum reminding states of some flexibilities that exist within current program structures (GAO Briefing for Congressional Staff:4).

B. Suggestions and Considerations

What are the minimum requirements needed to move a case forward and to meet deadlines? Arranging a hearing requires the following basic elements:

Honorable Ernestine S. Gray

 

• Court records to identify the due date of the hearing and the legal history of the case;
• Advance notification (or reasonable efforts to provide notification) of the hearing to all parties;
• The judge;
• A responsible agency caseworker;
• An agency attorney;
• An attorney, guardian ad litem, or CASA for the child;
• The parents’ attorney or attorneys; and
• Some means of recording the proceedings.

 

If the following steps have been completed, it should be possible to conduct hearings under emergency conditions:

 

1. Judicial records have been backed up and are available.
2. Key participants have been located, including, at minimum, the judge, at least one parent or guardian, an attorney for at least one parent or guardian, the responsible caseworker, and an attorney for the government.
3. There have been reasonable efforts to locate and notify all other participants and efforts to notify them and reopen the
proceedings will continue to give them
the chance to participate.
Joy Peacock

It is not necessary that all of these participants be physically present for the hearing. State law or procedure may permit connecting parties to the hearing by telephone or other audiovisual links. If parties are scattered across state lines, this can be arranged pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). Reports from other key stakeholders (e.g., service providers, foster parents) can be relayed by the caseworker or CASA, for example, to all parties at the hearing.

Karen Hallstrom

If the court has a COOP or other contingency plan in an emergency, the
location of the hearing and the method of telephone or other linkup, if applicable, will be established and communicated to all critical stakeholders before the disaster. If a hearing cannot take place due to limitations imposed by the character of the emergency (e.g., parties are scattered and no electronic hookups are available), an update by phone with the critical stakeholders may be the best way to keep everyone informed of the health, safety, and well-being of the child.

It is also helpful to keep in mind that under ASFA a review hearing may be held sooner than six months and more frequently than every six months. Following an emergency, it may be helpful to set up a series of rapid review hearings, in person or by phone, with the parties to update everyone on the status of children and to make arrangements for displaced children or other family members.

Joy Peacock

Taking into account both legal deadlines and the circumstances of each child
and family, courts need to craft a case-priority list so that those cases most in need of oversight can be heard first after hearing processes have been restarted.

The following are some key types of information that should be gathered before each hearing, even during a disaster:


• The current location of the child and with whom the child is placed.
• The current safety and protective arrangements for the child.
• Which parties and agencies have visited the child and currently have access to the child.
• Services currently provided for the child, services arranged, and when arranged services will be provided.
• Services currently provided for the parents, services arranged, and when arranged services will be provided.
• How, when, and where will any visitation with the parent and sibling(s) commence.
• If applicable, how and when the child will return to school.
• If applicable, how and when the child will return to the jurisdiction.

 

The emergency steps described above will be possible only if there has been strong advance preparation and quick organizational adjustments following the disaster. A basic requirement, of course, is that the dependency court has an existing COOP plan that takes into account the hearing requirements summarized above. Further, all key court personnel and participants in the court process must be aware of the specifics of the plan.

The following steps must be completed well in advance of a disaster to make it possible that there will not be long delays in timely hearings for child abuse and neglect cases:

1. State laws and procedures must allow hearings to be conducted, when necessary, outside the usual local jurisdiction.
2. There should be legal authority, when necessary in emergencies, to hold hearings at locations other than at courthouses.
3. Court records must be preserved and available from remote locations to judges and court employees.
4. Agency records must be preserved and available from remote locations to enable caseworkers to present information to the court.
5. The records of attorneys and other advocates must be preserved and available from remote locations not only for the attorneys and advocates to represent their clients, but also for others to take over their roles when necessary.
6. There are clear plans for emergency operations of courts that apply to all of the participants—judges, court employees, attorneys, other advocates, child welfare agency administrators and supervisors, and child welfare agency supervisors.
7. All of the participants have received copies of the plans, have kept them in remote locations, and have been trained regarding the plans’ content.

The following steps must be taken quickly after a disaster occurs to allow the court process to go forward in child abuse and neglect cases:

1. Judges must be quickly identified who can preside over dependency court proceedings. Note that the court in which the child was located before the emergency usually will have jurisdiction of the case, rather than the court where the child is located immediately following the emergency.
2. Attorneys and other advocates for all parties must be quickly located or appointed to participate in court hearings at the place the hearings will occur.
3. Enough caseworkers must be assigned to participate in court hearings, either at the location of the court or, if permitted, by telephone. Thus, it may be necessary to assign caseworkers where court proceedings occur, even when families have moved to other localities.
4. Courts, agencies, attorneys, and other advocates must quickly locate and gain access to their backup records.
5. A location must quickly be secured from where court hearings may be conducted.

 

Joy Peacock