Modern Family Matters

Important Things to Know About DHS and How Child Welfare Cases Are Processed

September 28, 2020 with Landerholm Family Law Season 1 Episode 14
Modern Family Matters
Important Things to Know About DHS and How Child Welfare Cases Are Processed
Chapters
Modern Family Matters
Important Things to Know About DHS and How Child Welfare Cases Are Processed
Sep 28, 2020 Season 1 Episode 14
with Landerholm Family Law

DHS has two divisions. They have the Child Protective Services Division, who investigate allegations of child abuse or neglect and coordinate visits, and they have the ongoing permanency workers, who do the ongoing case work with the family. 

Child welfare complaints typically get filed from a teacher, a neighbor, a family friend, or someone who has a relationship with the child. A complaint can be filed via the Child Protective Services hotline.

The hotline staff will divide the reports into several categories that will trigger measured responses, depending on the seriousness of the allegation. If there are signs that a child might be in danger of abuse or neglect, there will be an immediate response within 24 hours.

If CPS knocks on your door, there are two things to know: you are not legally obligated to let anyone into your home unless a warrant is presented, and it’s important to not get agitated or reactive—doing so will almost guarantee an intervention. 

If your children are taken, the following court appearances may be required, depending on the facts of each unique case, whether a settlement is reached, and each parent’s willingness to address the area of concern:

·         A shelter hearing, a jurisdictional hearing, a dispositional proceeding, periodic reviews, a permanency hearing, and potentially a termination of parental rights trial. We explain each of these in the podcast.

Show Notes Transcript

DHS has two divisions. They have the Child Protective Services Division, who investigate allegations of child abuse or neglect and coordinate visits, and they have the ongoing permanency workers, who do the ongoing case work with the family. 

Child welfare complaints typically get filed from a teacher, a neighbor, a family friend, or someone who has a relationship with the child. A complaint can be filed via the Child Protective Services hotline.

The hotline staff will divide the reports into several categories that will trigger measured responses, depending on the seriousness of the allegation. If there are signs that a child might be in danger of abuse or neglect, there will be an immediate response within 24 hours.

If CPS knocks on your door, there are two things to know: you are not legally obligated to let anyone into your home unless a warrant is presented, and it’s important to not get agitated or reactive—doing so will almost guarantee an intervention. 

If your children are taken, the following court appearances may be required, depending on the facts of each unique case, whether a settlement is reached, and each parent’s willingness to address the area of concern:

·         A shelter hearing, a jurisdictional hearing, a dispositional proceeding, periodic reviews, a permanency hearing, and potentially a termination of parental rights trial. We explain each of these in the podcast.

Intro:

Welcome to Modern Family Matters, a podcast hosted by Steve Altishin, our Director of Client Partnerships here at Landerholm Family Law. We are devoted to exploring topics within the realm of family law that matter most to you. Our discussions will cover a wide range of both legal and personal issues that accompany family law matters. We strongly believe that life events such as marriages, divorces, re-marriages, births, adoptions, children, growing up, growing older, illnesses and deaths do not dissolve a family. Rather, they provide the opportunity to reconfigure and strengthened family dynamics in healthy and positive ways. With expertise from qualified attorneys and professional guests, we hope that our podcasts will help provide answers, clarity, and guidance for the better tomorrow for you and your family. Without further ado, your host, Steve Altishin.

 

Hello, everyone. Welcome to our Modern Family Matters podcast. I'm Steve Altishin, Director of Client Partnerships here at Landerholm Family Law. Today we're going to talk about DHS and child welfare cases. We'll go through what to do when CPS knocks on your door, who determines whether a child is removed from your home, how child dependency cases are processed, and when you need a lawyer. So to help make sense of all this, we have Kathleen Strek, an attorney here at Landerholm Family Law, with us. Hey, Kathleen, how are you doing?

 

Kathleen Strek  1:49  

I'm good, Steve. How are you doing today?

 

Steve Altishin  1:51  

I'm doing well. Thank you. So Kathleen, the child welfare system feels like a giant, mysterious labyrinth full of agencies, caseworkers, investigators, lawyers, all stacked inside each other like an intricate set of china dolls. So before we get into the process and how it works, can we start with an overview of who the players are in a child welfare case?

 

Kathleen Strek  2:23  

Yeah, sure, we can start there. So people who are going to show up in a child welfare case are going to be the child services employees themselves, so that's going to start with employees who are Child Protective Services workers. That's going to be the first point of contact for a child protective services case. DHS has two divisions. They have the Child Protective Services Division, which comes in on the front end- they investigate allegations of child abuse or neglect, visits, and they do that by visiting the home, collecting reports from other people like neighbors, family members or friends. They might talk to doctors, get hospital records if the child's entered the hospital. And then there's the ongoing permanency workers, the employees who are not Child Protective Services workers but do work for DHS. But they do the ongoing case work with the family. They take over the case after the CPS worker hands it off to them, which is usually within the first 60 days or so, maybe 90. As soon as jurisdiction is established, the case will transfer from Child Protective Services over to the permanency workers. And the permanency workers and their supervisors will then take over working with the family until the case is completed.

 

Steve Altishin  3:39  

So are the Child Protective Services folks part of DHS?

 

Kathleen Strek  3:46  

Yeah, yeah, Child Protective Services is part of DHS. So they have Child Protective Services, who work with the families on the front end. At the beginning of a case before a case gets filed, they'll work with families, sometimes they work with families for quite a long time. And then after jurisdiction is established, the permanency workers takeover. The other people who are going to show up in a child welfare case are going to be the attorneys for the Department of Human Services who are employees of the State Attorney General's office. There's going to be, the day that you show up in court, if you show up in court and if a petition is filed and a family goes to court, in that courtroom, they're going to see of course the judge. They're going to see the Child Protective Services worker. They will see the attorney for the Department of Human Services, and they'll see attorneys for the parents themselves, who will have attorneys assigned to them, and the child or children will have attorneys assigned too. There's also going to be a CASA, which stands for Court Appointed Special Advocates for children. These are people who are volunteer members of our communities. They volunteer to work with the CASA organization, and they become advocates for the child. They are not necessarily advocates for the family, they're advocates for the child. So sometimes the positions CASA takes are not necessarily positions the parents, or the parents attorneys, or sometimes even the child and the child's attorneys also want to take. They may have different opinions. CASA is most likely to be aligned with the Department of Human Services. The district attorney's office sends representatives to most of the child welfare proceedings. In fact, I think it's still typical in every county that I have practiced in in Oregon, for the district attorney's office to also have a representative there. But the Attorney General's Office has now taken over doing all of the legal representation. They're the ones who go to court and argue attorneys for the Department of Human Services at this point in time. 

 

Steve Altishin  5:47  

Holy moly, that's a lot of people.

 

Kathleen Strek  5:48  

Yeah, it's a lot of people and can get confusing, right?

 

Steve Altishin  5:50  

It does. So CPS, it sounds like they kind of are the initial investigators. 

 

Kathleen Strek  5:57  

That's exactly what they are, yep. 

 

Steve Altishin  6:00  

So let's say someone sends a report and calls in, says this person is doing something. However, I'm assuming something like that starts a child welfare case moving forward. And what happens from there? Why happens when they call in and say, 'My neighbor's doing this'?

 

Kathleen Strek  6:20  

Well, a really typical way that a child welfare complaint gets lodged is a teacher or a neighbor, or someone at church, calls the Child Protective Services hotline. It's a statewide number, it's an 800 number. They get calls all the time. Sometimes it's because a child has been showing up at school hungry or not dressed appropriately for the weather. Or maybe a child showed up at school in tears looking disheveled and said, "Mom hit me this morning', or, 'Dad hit me this morning before I came to school'. Sometimes it's a dramatic thing like that. Sometimes it's more of a kind of drip, drip, drip, and the teacher is seeing issues with this kid. This kid never seems to have their lunch. They never seem to be dressed appropriately for the weather. They come to school dirty, they don't smell good, they're not clean. They have issues with their teeth. Teachers notice things like that, they're trained and it's part of their job to look out for the children that they teach. And they will frequently call Child Welfare Services when they think things are dangerous for the child, or the child is really being neglected or could possibly be being hurt. Neighbors call. Family members call. Any of those calls to the hotline, if they present facts that seem sufficient to indicate that a child might be in danger or neglected, that will trigger a visit from Child Protective Services.

 

Steve Altishin  7:50  

So Child Protective Services does start an investigation. Do they end up reporting that to somebody?

 

Kathleen Strek  7:59  

Yeah. So some of the reports are closed at screening. There are different ways these reports are handled at the hotline. The hotline staff are trained to divide these reports into several different categories. One of them is closed at screening, meaning there's nothing in this phone call that has indicated that this child is seriously in danger of abuse or neglect. And it's going to be closed at screening, so whatever message they got, it just isn't serious enough. And then there's others that are going to trigger a measured response. They're not going to be an immediate response. It doesn't sound like there's any immediate threat to the child. But there's other reports that are going to trigger an immediate response within 24 hours. That would be some indication that a child is being sexually abused or a child has been left in a dangerous situation. For example, outside you have kids wandering on the street, there's a two year old in a diaper that hasn't been changed in forever. In the front yard, nobody appears to be home, nobody's answering the door. The neighbors are worrying, the kid wanders across the street. The neighbors call and say, 'This kid's been out wandering around at all hours of the day and night. It's been going on for weeks. We keep bringing the kid home. Today, we brought the kid home and Mom didn't answer the door, or Dad didn't answer the door, and we don't know what to do'. They're going to be on your doorstep really fast in a situation like that.

 

Steve Altishin  9:25  

So that leads into the question, what happens if CPS does knock on your door?

 

Kathleen Strek  9:36  

Ah, well, if CPS knocks on your door, the first thing you want to remember is you don't have to let them into your house. Unless they show up with a police officer and a warrant, they're a child protective services investigator. They don't have the right to come into your house. You can step outside and close the door behind you and talk to them. You don't have to invite them in and you probably shouldn't invite them in. So you're going to have a conversation with them. And they're going to ask you, you know, 'We got a complaint, the neighbor says they keep finding your kid in the yard not dressed appropriately, too young to be out by themselves. We want to know what's going on. We're concerned about your child'. So if that's the situation, they're going to talk to you about that. And they're probably going to ask to see your home, they're going to ask to come inside. If they have gotten a report that they're really concerned about, it indicates that the child might actually be in physical danger, or there is serious neglect going on, or if a parent answers the door and is obviously intoxicated or under the influence of something and you say, 'No, you can't come in', they may get a warrant and come back. They may stay there actually, they may wait in the yard get a warrant. They can get one pretty easily if they have great facts and they're going to come in. And a lot of people are aware of this, especially people who've been involved in other legal proceedings where they had someone wanting to search their house. They kind of know that it may be just a matter of time. But that still doesn't mean you have to let them in. The important thing to not do, however, in addition to not letting them in unless they have a warrant, is to not get agitated, To not scream, not yell, not get angry, because that's almost guaranteeing an intervention. So just try to stay calm and say, you know, 'What are you here for? How can I help you? What do you want to know?' If they say, 'Why was your kid outside?', if you have a reasonable explanation for that, they might just go away. But it really depends on the circumstances.

 

Steve Altishin  11:38  

You know, you see, obviously, everyone has a smartphone. Everyone uses it to record incidents. It's actually being encouraged in a lot of cases. Is it legal to, say someone showed up at your house, are you okay to pull out your cell phone and start recording?

 

Kathleen Strek  11:58  

Yeah, you can pull your phone out and you can say, 'I know you're here because you're concerned, and I'm concerned too. And just because I want to make sure I protect myself, I'm going to go ahead and turn on my camera and record our conversation, is that okay with you?' And they can't really stop you from doing that. So you just say, 'If you don't have any problems with it, I'm going to record this', and that's fine.

 

Steve Altishin  12:23  

It seems like it's at least a way to, you know, if there's nothing wrong and you're not doing anything wrong, it's a way to at least preserve that.

 

Kathleen Strek  12:31  

Yeah. Right. It is. And you might not be doing anything wrong.

 

Steve Altishin  12:37  

Yeah, exactly. So can you ask for an attorney this early?

 

Kathleen Strek  12:44  

There's no petition filed, and the parent's right to an attorney, and the child's right to an attorney, attaches when a petition is filed in court. So you don't have a right to a court appointed attorney before that point. If you have an attorney, I mean, people from all walks of life get visits from DHS. And some people have an ongoing relationship with an attorney, whether it's an attorney who helped them with their divorce, or an attorney who maybe represented them in a DUI, or a speeding ticket or something. They might have a good enough relationship with an attorney to call them up and say, 'Hey, I don't know who to call, but I have somebody here from the state who wants to ask me a lot of questions, can you give me any advice?' They might or might not be able to help you. It's more likely a family law attorney might have some ability to give you some advice at that point, but it depends. Child welfare cases are really kind of a specialized niche. Most of the people who do them are public defense attorneys. And so, unless you happen to have a relationship with someone who does child welfare cases, they're probably not going to be able to be really helpful at that point. 

 

Steve Altishin  13:54  

Yeah. Can you ask them to come back and say, 'Look, I'd like to talk to my lawyer. Can we reschedule this for tomorrow?'

 

Kathleen Strek  14:00  

You can, of course, Yeah, you can. And you know, you can also suggest that you make an appointment for a meeting, either at the DHS office or in your lawyer's office, and you have a conversation at that point. I have accompanied people who have had lawyers who have done that successfully. They said 'I'm not comfortable talking to you right now, I'm going to call my attorney, and we'll set up a time to come in and meet with you,' or, you know, 'We'll arrange for you to come to the attorney's office'. DHS doesn't like that very much, but they can't really say no, unless they think the child is in immediate danger. If they think that child is in immediate danger, they're just going to get a warrant and come in.

 

Steve Altishin  14:42  

So let's say they do that. Let's say they get a warrant and they remove your child from the house.

 

Kathleen Strek  14:50  

If it's really an urgent situation, they don't have to get a warrant. They can get the kid. They can come in and get the kid. If that kid is in immediate danger, this is the one circumstance that allows them to come right into your home and get that kid. So if you open the door, and something is going on in your house that looks incredibly dangerous to the children in your home, you may not have any choice at all; they're coming in.

 

Steve Altishin  15:14  

So they have that power, like a police officer in that respect, in that limited situation?

 

Kathleen Strek  15:19  

Yep, they can immediately intervene if there is immediate threat of harm.

 

Steve Altishin  15:24  

Okay, so let's say that happens. What happens next? Obviously, they've taken the kid, nothing has been filed, where's it go from there?

 

Kathleen Strek  15:35  

If they take your children, they're going to file a petition. The petition is going to allege that there are conditions that exist that presented a threat of harm to your children. Substance abuse is a really frequent condition for removing children. Someone's substance abuse is out of control. Their drinking is out of control. They're using methamphetamine and it's out of control. Or through significant domestic violence in the home, or there may be significant criminal activity in the home. Those are really common allegations. DHS's attorney will prepare a petition, they'll file that petition in the juvenile court. You, as a parent, will get a summons. By law, the first appearance has to take place within 24 hours of the day that they take your children out of the home. If that happens to happen on a Friday, though, it's 24 business hours for the courthouse. So if it happens Monday afternoon, it's going to be Monday. If it happens on the Friday before Labor Day, it's going to be Tuesday. So the kids could conceivably be out of your home and not see you for three or four days. For very young children, that's really traumatic. It's hard. And parents find it really traumatic. So the next thing that's going to happen is you're going to have a summons handed to you, and it's going to tell you when to appear in court and where—it will state where the juvenile court is, and that you are to appear. At that point, you're not going to be given the name of an attorney, you're not going to know who your attorney is. Most likely are not going to know until sometime later. It is possible that your attorney will reach out to you before the hearing if they have time. If they know they've been assigned to your case, and they have time to reach out to you, you may get a phone call from an attorney saying 'Hey, I want to talk to you'. You're going to have what they call, this hearing is called a shelter hearing. So it's an opportunity for the DHS to present to the court the reasons why they removed these children from the home, and for the judge to make a decision about whether or not that removal was justified. So you're entitled to have an attorney at that proceeding, but you might not meet that attorney until you get to that proceeding. In fact, you might not meet that attorney until you're walking in the door. I've been in courtrooms where parents are walking in the door looking for their attorney and they don't even know what they look like or what their name is. They just know that they're there for their child's hearing, and that's all they know.

 

Steve Altishin  18:02  

Can they call an attorney? Can they actually hire an attorney to come with them to that hearing? 

 

Kathleen Strek  18:08  

Sure, yeah. And parents who have the means and ability to do that, do that. They do show up with an attorney. Sometimes it's not possible to get one that fast, though. Unless you have a pre-existing relationship, you're probably not going to get an attorney over the weekend. So you show up, you're going to have a court appointed attorney until it's determined that you're not eligible. I mean, you may not be eligible for a court appointed attorney because you make too much money. But there's going to be somebody at that shelter hearing to represent you. It's really critical, if there's any way you can do it, to tell your attorney that you like them. I mean, this is a hard thing for parents to do, but tell the attorney that you really want some time to talk with them and make sure that they know all the facts. And you can ask them to ask the court to continue the shelter hearing, and give you time to meet with your attorney and come back and present an organized defense and an organized story for the court about why the children don't need to be in somebody else's home, why they're safe at home with you. It's almost impossible to win a shelter hearing on the fly, to do it off the cuff. You know, there has to be something that's really gone wrong for an attorney to do that. Most of the time, we just don't have the time to get that kind of information. If you can stand it, and the attorney will do it, asking for a continuance, if the court will grant it, might buy you that time to get your case organized, and present all the information that the judge really needs to hear about why your children should come home. That might not make the petition go away, but it might result in the children coming home at the shelter hearing. Not being continued in foster care shelter hearing. So it's not real common to have a continuation of the shelter, but it happens if the facts allow.

 

Steve Altishin  20:12  

It's allowed.

 

Kathleen Strek  20:13  

Right, it can be allowed.

 

Steve Altishin  20:16  

Is it generally a long time, or is it just more like a few days?

 

Kathleen Strek  20:20  

It's not generally going to be a long time, no. It depends on the county you're in and how busy that court is. And whether you're going to get a continuance granted is going to depend on the judge and how busy they are, and the court, and the county, and what the practices are there. So it depends a lot on your individual circumstances.

 

Steve Altishin  20:36  

So what then gets decided at the shelter hearing? Obviously nothing permanent.

 

Kathleen Strek  20:44  

Nothing permanent. What gets decided at the shelter hearing is whether DHS had a good reason to take your kids out of your home and whether it's likely that they're not going to be safe if they return home. So if the judge is convinced that circumstances demanded their removal, and was the only way to be sure that they are safe, well, more information is collected to keep them in foster care. The judge is going to approve their request for shelter order and the kids are going to stay in foster care. Sometimes kids are sent home at the shelter hearing. Sometimes judges aren't convinced that they can't be safe at home. Sometimes, appropriate measures can be put in place to keep the children at home rather than in foster care. For example, there was a case I was involved in recently where the mother was having problems with alcohol. And DHS was very concerned. She had been found driving with the children and she was intoxicated. And they removed the children because the mom was intoxicated and had her kids in the car. So at the shelter hearing, though, what ended up happening was that an alternative solution that would keep the children safe and allow them to remain with mom was discovered. The solution was to put an intoxilyzer on mom's car, so that mom couldn't drive while she was intoxicated. And then the kids could go home because there's no other real threat to them. They weren't babies, they were older children. She wasn't going to drop them on their head, and they could feed themselves. So even if she was really struggling with alcoholism, you know, it's better for kids to be at home. And we were lucky in that case that the judge recognized the importance of being in your own home versus being in a stranger's home. Removal is very traumatic for children, being taken from your own home and placed with people you don't know in a house that smells different, feels different, has different people in it, different rules, different standards for cleanliness and hygiene, maybe. It's very uncomfortable for children and studies have shown that that actually has a very significant impact on the child's developing brain. The trauma of being removed from your parents and put in foster care is real. And it impacts children on a physiological level. So it's a big deal, and judges are beginning to understand this. So they're more willing, if they're judges who are attuned to the issue, to consider creative solutions like the intoxilyzer, which removes the threat to the children without taking them out of their home. And by law, the Department of Human Services is required to document that they have made efforts to come up with solutions like this before they remove the kids. So if you're there in court, and you come up with an idea like this, a practical solution to the threat, and DHS didn't work to do that--they just took the kids without even trying to come up with a solution--you might get a ruling from the court that they failed to make reasonable efforts to prevent the children from being removed. And that's actually a significant blow to DHS. They lose funding for that case, they lose their federal funding for that case for the life of the case. They removed children from the home, when reasonable efforts would have prevented removal. Other kinds of reasonable efforts that might prevent removal would be trying to work with the family first. So except in exigent circumstances where there's an immediate threat to the child, the Department of Human Services should be working with the family, rather than just removing the kids right away. If it's a problem that can be addressed in ways besides removing the kids, they have a legal obligation to try to do that.

 

Steve Altishin  24:30  

It sounds like, unlike maybe a criminal hearing where you just go in to plead guilty or not guilty, this sheltering is a very important hearing. And there's some significant things that can happen. And like you said, being on the fly is really not the way to go if you can help it. I mean, this is, what you were telling me, basically a case where being able to have an attorney there who could help come up with that kind of a solution right off the bat is huge.

 

Kathleen Strek  25:07  

It's huge. It's really huge. But in reality, child and parents are both going to get attorneys who've never met them, don't know anything about them, and have maybe not even read the petition yet, because it was just filed. So, you know, in one of the counties I work in, if the children are removed on a Friday, and DHS is going to file a petition, they file it on Monday morning. And so it might be nine or 10 o'clock in the morning before the petition is filed with the court. If the attorneys who do these cases are in court already on other matters, say you're busy for the day, you don't have a whole night free to sit down and read that petition. You might be in court right up until noon. Well in that particular county, they have these shelter hearings at 1:30 in the afternoon. So maybe you have time over your lunch hour to look at the pleadings and try to meet with your client. And you'll get their phone number and you'll try to call them, can you reach them? Can you find time to get together and talk and help prepare them for their hearing? Maybe not. You know, in reality, the time pressures are pretty steep. But it is a really important thing. And it's important for those parents and attorneys to connect ahead of the hearing, and for that attorney to actually read the pleadings before the hearing and ask their client questions, determine their clients position, especially if you're representing a child. If you're representing a child, you have the same obligation that parents' attorneys do. You need to meet with your client, who might be in foster care, but you need to try and go meet with them if you can. That's a really hard thing to do in the few hours you have before shelter hearing. They may not even be in the county that you're in. They may have been placed outside of the county, so it might be impossible.

 

Steve Altishin  27:07  

Yeah, it almost feels like if someone has an understanding or belief or something comes to light that makes them feel this might happen; it hasn't happened yet, but if someone is threatening to call, that might be a good time to start looking for an attorney and talk to an attorney.

 

Kathleen Strek  27:33  

Well, yeah. And in the context of domestic relations cases, you might have an opportunity to do that. Because DHS often gets complaints, CPS often gets complaints, that are coming in the context of a dissolution proceeding. Parents were warring with each other, and one parent calls CPS and makes a complaint about the other parent’s behavior that's a danger to the children. They're driving drunk with the kids. They're abusing drugs. There's domestic violence in the home. But there's an ongoing dissolution proceeding too, and you have an attorney, you have a divorce attorney. So, in that circumstance, you may be able to show up at the hearing prepared. If your divorce attorney happens to have some experience with dependency cases; that's what they call these-- child dependency cases, cases for dependent children, children who are dependent on the resources of the state; they might be able to show up and help you.

 

Steve Altishin  28:28  

Right. So if the shelter hearing ends up where, which in a lot of cases it does, the child continues to have to be removed, or is not given back to the parent, obviously, then, the case goes on. What happens after that?

 

Kathleen Strek  28:48  

So at this point the state has legal custody of your children, they might be in foster care. They might be at home with you. Just because the case is open doesn't always mean the children are in foster care. Sometimes the state has legal custody, but the parent retains physical custody of the children. The next step is a jurisdictional hearing. And that's going to take place probably 60 days from the shelter hearing, but not always. Sometimes it gets pushed out a little bit further. For example, if one of the reasons that the kids are in care has something to do with a situation that could potentially result in criminal charges for a parent, sometimes an attorney will ask to delay the jurisdictional hearing, because they don't want to put their client on the witness stand and testify about anything that might come up in the criminal case. And that happens actually fairly often. But theoretically, jurisdiction is going to happen within 60 days. And that's a trial. That's an actual trial. You and your attorney should be prepared for trial, unless you're going to be settling, so you have a choice to make. Are you going to agree to some of the allegations in the petition? Are you going to agree that you're substance abuse presents a serious threat of harm to your children? Are you going to agree that there is significant domestic violence in the home and you need help, either because you're a victim of violence and you need to learn how to how to deal with that relationship that's presenting harm to your children, or you're the perpetrator and you need to go get some help controlling your emotions and temper? It's going to be a trial, unless you settle. So it's a real trial. It's not a jury trial, it's a judge trial. But your attorney should be interviewing witnesses. They should be preparing evidence to submit an exhibit form. They should be interviewing you extensively to really understand the whole situation, and really gearing up to put on a real trial that may take anywhere from a couple hours to a day. It's not likely it's going to be more than one day. A half day is probably more common even. In reality, most jurisdictional trials settle. Most of these cases settle. People come to some agreement with the Department of Human Services. Maybe there's some modification in the language of the allegations. Maybe the Department of Human Services goes 'Oh, actually, we kind of realized we aren't going to be able to prove allegation A, maybe not allegation B, but we really think we can prove C. And so you and your attorney might agree that you'll admit to C, and the state may agree to dismiss A and B, and then the state will take jurisdiction that's based on the allegation that you've admitted. And that's going to happen pretty fast. If that happens, or if you have a trial and the judge has time, immediately after the jurisdictional hearing is finished, you're going to have a dispositional proceeding. And in the dispositional proceeding, the judge is going to tell DHS what you have to do as a parent to get your children back. The state will have made requests of the court in writing. They will have requested, in writing, orders from the court that will guide this case from that day on. They will tell, for example, a parent who has substance abuse problems, that they need to get a drug and alcohol assessment. They need to go to substance abuse treatment as indicated by that assessment, and they need to follow their treatment providers rules and recommendations that help with improvement and get them clean and sober. If it's parenting education that's needed, say there's somebody who is simply a really inexperienced parent and doesn't understand how to properly and safely care for children, parenting education could be ordered. Domestic violence education and training could be ordered. There are all kinds of things a court could order. You can negotiate that as well. So just because the state says, 'We want you to do this,' doesn't mean you have to. And one of my favorite things to negotiate around, everybody who knows me knows this, is the psychological evaluation for the parent. The Department of Human Services loves to ask the court to order a complete psychological evaluation for the parents in these cases. And they don't really use it for much, they kind of sit on it until the case is dragged on and on and on. And they end up in termination of parental rights proceedings, and then they drag it out. And they use these psychological evaluations to prove that the parent is unfit, by nature, and have some kind of permanent defect in their personality or their mental health. So they're very dangerous evaluations to go through. As a matter of fact, I've never seen one used in a positive way ever. But that's a whole different subject, we could have a podcast about that all by itself.

 

Steve Altishin  33:58  

So there are all of these things that are sort of decided. And like you said, it includes some ongoing treatments or actions. Are those reviewed then as you move on?

 

Kathleen Strek  34:15  

Yeah. So periodically, you're going to come back to court and the courts going to check on your progress. Of course, DHS is going to be keeping really close tabs on your progress, and they're going to be sending reports to the court periodically. In some counties, that's every 30 days, if the judge really wants to keep close tabs on things. And in some counties, there might be more time in between reviews. But you're going to have what they call 'periodic reviews', where the court is going to assess whether you're making progress towards the goals that you need to meet in order to have your children returned to you. They're also going to check on how the Department Human Services is doing with your child while the child is in foster care. They're going to want to make sure that the children are getting what they need in terms of any mental health services for the children. Special education service if that's indicated, dental care and medical care. Are they getting their immunizations? How is their dental care doing? If they came into care with some dental neglect, sometimes just due to poverty and not all parents can manage to get their children the health care that they need. We have a country where that's not necessarily provided as of right. So if you're struggling financially, sometimes you miss those visits. 

 

Steve Altishin  35:27  

Yep. So obviously this comes to an end at some point and there's something permanent decided. I know we're getting near the end of our podcast, but is there a final, permanent hearing?

 

Kathleen Strek  35:43  

Yeah, there is. So there's what they call a 'permanency hearing'. About a year, roughly, into the case there's going to be a permanency hearing. The rules technically say that once the child has been in care for 15 out of 22 months, the state is obligated to hold a permanency hearing. And at the permanency hearing, the judge has one really critical decision to make, which is: are the parents making sufficient progress towards their reunification goals to keep this case on a reunification track? So, if there is no indication that the parent is interested, or able to meet the goals that have been set for reunification, the court can change the plan for reunification to something else. And that something else could be adoption. It could be placing the child in a permanent guardianship, sometimes with a friend or family member, sometimes with whoever has been providing foster care, which might or might not be a relative. There are other kinds of plans too. Older children, teenagers 14 and up, they're much less likely to be placed on an adoption track. They're probably going to be placed in a plan called APLA, which is an alternative plan living arrangement. Basically, it's a way of helping a teenager become an adult and become self-sufficient. They're continued in foster care, but they receive services and funding to help them become able to live independently. There's actually quite a lot of benefits for children in that situation if their parents are permanently unable to care for them, but they're really too old to be adopted or they don't want to be adopted. If they don't want their parents’ rights terminated, they may end up in an APLA plan, which is kind of an independent living for older teenagers plan. Those kids can be eligible for pretty significant educational benefits. Free college tuition, for example, as well as continued health care and housing. They get housing subsidies so they can live in apartments, they can have their own place to live.

 

Steve Altishin  37:47  

It sounds like that could be a good result, and sometimes that's the best thing that can happen.

 

Kathleen Strek  37:52  

Yeah, I mean, sometimes it is. Sometimes I find that my child clients in dependency cases, some of them are very mature, and they like this opportunity. They have kind of been through the mill with their parents and they're kind of ready to move on with their own lives. They recognize that mom and dad are probably not really ever going to get their act together and this is as good as it's gonna get. And you know, some of them do real well.

 

Steve Altishin  38:16  

Well, really what you want at the end of the day is the best interest of the family and of the children to come out.

 

Kathleen Strek  38:17  

Yeah. But that's not the end of the story. The next thing that happens after the permanency decision is made is, if the plan is not changed and if it stays with reunification, that's because the court has heard that the parents are making progress. It's maybe slow, but they're making enough progress, and there's enough indications that the court keeps the plan for reunification and doesn't allow the state to change it, if they're asking to change it. And they don't always ask to change it, but if they are and the parents can put on a good enough case that they are making progress; maybe they're late to make progress but now they're doing it, whatever it is they needed. Maybe they didn't engage right away, but now they are engaged and now they are making progress. They're clean, they're sober, they're safe. The court may continue the plan of reunification for a bit longer. And if the court adopts a plan of adoption or guardianship, then they're going to schedule a termination parental rights trial for the adoption in a guardianship proceeding for the guardianship. That's going to be set out a little ways. That's likely to be a multi-day proceeding. Again, like a jurisdiction, it's a real trial, it's in front of a judge, not a jury. But your lawyers are going to have to work real hard with you and there's going to be a lot of hours of time put into preparing for that trial. There's going to be volumes and volumes of documents. There's going to be a lot of stuff for you to discuss with your attorney. Witnesses are going to need to be called. You might be asked to go through a psychological evaluation by your attorney so that your attorney can put on some evidence regarding your mental health and abilities, or to explain maybe a disability that might influence the court not to grant the TPR. So there's a lot that goes into the TPR trials.

 

Steve Altishin  40:18  

Wow, there's a lot. It's a long and arduous process and getting your lawyer at the beginning of it just seems like the best way to go. Don't wait until you're at one of those late stages and it's almost too late to do anything. So, gosh, thank you so much for being here today. This was really, really informative.

 

Kathleen Strek  40:44  

Well, you're welcome, Steve. It was my pleasure. This is a really interesting topic and one that I feel very passionate about. I really enjoy sharing useful information about this process with other people.

 

Steve Altishin  40:59  

Oh my gosh, there was a lot of useful information. I always say to everyone listening that if you have any further questions on this, you can shoot me an email at Steve@landerholmlaw.com I'm happy to forward it on and we can get some potential contact with Kathleen and move forward. And again, thanks everybody for listening. This was Modern Family Matters. I'm Steve Altishin, and I hope everyone has a great day. We will speak to you next time. 

 

Kathleen Strek  41:36  

Thank you. Steve. Bye, bye.

 

Outro:

You're listening to Modern Family Matters a legal podcast, focusing on providing real answers and direction for individuals and families as they navigate the growths, changes, and challenges of creating their new family dynamics. Modern Family Matters is sponsored by Landerholm Family Law, serving Oregon and the Pacific Northwest and devoted to providing clients with compassionate and fierce legal advocacy with a firm belief in the importance of upholding the family unit amidst complex transitions. If you are in need of legal counsel or have additional questions about a family law matter important to you, you can visit our Landerholm Family website www.landerholmfamilylaw.com, or call us at (503) 227-0200 to schedule a case evaluation with one of our seasoned attorneys. Modern Family Matters, advocating for your better tomorrow and offering solutions on legal matters, important to the modern family.