Legislative and Case Law Update

Defending Washington Families: Statewide PRP CLE 2018Amelia Watson

Brett BallewJacob D’Annunzio

Open a browser window on your phone, tablet, or laptop at: pollev.com/brettballew049

SB 6309 Extending Far Timeline to 120 Days

• No new money• WSIPP Study 2017

• No less likely to have a new report to CPS• Less likely to have a child removed from home• Slightly less likely to have a dependency filed• More likely to receive paid in-home services, and • No more likely to receive an evidence-based practice.

HB 2008 Forecasting BRS, Screened in Reports, and Visitation• The Caseload Forecast Council will forecast BRS placements and the

expected number of screened in reports for abuse or neglect• Someone (DCYS) will also forecast parent-child and sibling visitation

HB 1790 DCYF Free from Probation

• HB 1790: Probation officer approval no longer required on dependency petitions when the department of social and health services is the petitioner.

HB 2785 Foster Parent Rights

• HB 2785: The requirement that DCYF provide foster parents with a list of foster parent rights and responsibilities on the DCYF website and in writing at the time of licensure is modified to also require the list be provided to foster parents at orientation before licensure and at license renewal.

• 8108. Foster Parents’ Rights• Foster parents have the right to be free of coercion, discrimination, and

reprisal in serving foster children, including the right to voice grievances about treatment furnished or not furnished to the foster child. RCW 74.14A.020; RCW 74.13

SB 6222 EFC Extended

• More broadening of EFC eligibility. • Eligible if dependent (not just in foster care) at age 18• May enroll, reenroll, and unenroll at will through VPA

SB 6453 Purchase of Legal Representation

• Within existing appropriations, DSHS may purchase legal representation for parents or kinship caregivers, or both, of children who are dependent or at risk of being dependent for the purposes of modifying a parenting plan as part of a non-parental action for child custody or establishing other relevant civil legal relationships.

• Discretionary by the department and no additional funds allocated• DCYF is encouraged to work with OPD and OCLA on the cost effective

delivery of this service

SB 5598 Non-Parent Relative VisitationAttempt to fix Troxel:At hearing, the court must grant visitation if the relative proves both likely harm to the child without visitation, and visitation is in the child's best interests. In making its decision, the court: presumes a fit parent's decision to deny visitation is in the

child's best interests; • considers the reasons the parent opposes visitation with the

non-parent relative;• allows rebuttal evidence from the non-parent relative

showing the risk of harm to the child if visitation is denied;• may grant visitation if the relative rebuts the parent's

objections with clear and convincing evidence of harm to the child if visitation is denied;

• considers non-exclusive best interests factors including (1) love, affection, and strength of the relative's relationship with the child; (2) how the relationship benefits the child; (3) good faith of the parties; (4) physical, emotional, or mental abuse by the relative or anyone residing with the relative; and (5) the child's preference if the court finds the child old enough to express a preference.

As we have explained, the Due Process Clause does not permit a State to infringe on the fundamental right of parents to make child rearing decisions simply because a state judge believes a “better” decision could be made.Troxel v. Granville, 120 S.Ct. 2054, 2063–64, 530 U.S. 57, 72–73 (U.S.Wash.,2000)

ESHB 2684 Keeping Kids in Their Schools

• Kids placed in out-of-home care must have the opportunity to remain in the school they were in at the time of removal unless placed with relative, it isn’t safe, or not in child’s best interest

• There are a number of factors listed for a best interest of the child analysis

• Parents must be allowed to give meaningful input in addition to many others

State v. James-Buhl, 415 P.3d. 234 (Wash., 2018).• A teacher’s failure to comply with the mandatory reporting duty

under chapter 26.44 RCW must have some connection to his or her professional identity.

• Under a different section than OPD SW’s mandated reporter obligation

• Still helpful

In re Dependency of Lee, 200 Wn. App. 414, 404 P.3d 575 (2017).• Trial court erred by not applying the Burnet factors when excluding

evidence and on these facts in which the excluded evidence went to the heart of the finding of abuse or neglect the error was not harmless, thus the finding of dependency is reversed and remanded for a new trial. The court erred by not using the Mathews factors to decide whether the child had a right to a court-appointed attorney.

Burnet Factors from Lee

• Prior to excluding the testimony of a late-disclosed witness, “the trial court must explicitly consider whether a lesser sanction would probably suffice, whether the violation at issue was willful or deliberate, and whether the violation substantially prejudiced the opponent's ability to prepare for trial.

In re Dependency of S.K.-P., 200 Wn. App. 86, 401 P.3d 442 (2017) (review pending).• Neither the Washington nor the United States Constitutions compel

the appointment of counsel for all children in dependency proceedings. A case-by-case application of the Mathews factors is appropriate and allows the court to consider each child’s circumstances to determine whether due process requires the appointment of counsel in each case.

In re Dependency of J.E.D.A. Jr., 2 Wn. App. 764, 413 P.3d 574 (2018)• Trial court was required to ensure that interpreter was qualified as

required in RCW 2.43.030 in dependency proceedings concerning minor child, whose aunt, the child’s purported guardian, spoke only Chuukese, a language native to Micronesia.

• If good cause to not use certified interpreter court must find proposed interpreter:

• (a) Is capable of communicating effectively with the court or agency and the person for whom the interpreter would interpret; and

• (b) Has read, understands, and will abide by the code of ethics for language interpreters established by court rules.

In re Dependency of J.E.R.C., 1 Wn. App. 2d 765, 406 P.3d 1187 (2017)• When the appellate court is considering discretionary review of an

interlocutory order entered in a dependency proceeding, appellate counsel may move to withdraw when there is no meritorious issue regarding which to seek review, and need not continue pursuing moot or frivolous issues.

• It sometimes feels as if there is no possible appellate relief from a shelter care order, but there can be. In re H. 71 Wash.App. 524 Where a technically-moot issue implicates due process rights, it is one in which there is sufficient public interest to warrant deciding it.

Matter of Dependency of M.-A.F.-S., 415 P.3d 1239, 1244 (Wash.App. Div. 1, 2018)

-Termination statutes are not unconstitutional although they allow parental rights to be terminated without there being a prospect for an adoptive home.-Well settled case law on this, but interesting that Amici briefs were filed arguing from child’s perspective

Matter of James, 416 P.3d 719 (Wash., 2018)

• Defense counsel in a rape case was ineffective in misinterpreting the DNA evidence. Thought it showed a second suspect when it did not.

• Did not employ his own expert to help him understand the state’s expert.

Just for Fun…

Fields v. State DEL 200 Wash.App. 1027(2017) (Review Pending)• Christal Fields was denied unsupervised access to children by DEL due

to a 1988 Attempted 2nd Degree Robbery Conviction, a permanent disqualifier on DEL’s list.

• Court of Appeals affirmed finding a rational relationship between DEL’s rule banning individuals with certain crimes and the states interest in protecting children, noting that Fields received a fair hearing.

• WA SCt oral arguments at: https://www.tvw.org/watch/?clientID=9375922947&eventID=2018051015&eventID=2018051015&autoStartStream=true

Just for More Fun….

In Interest of N.M., 2018 WL 2076995, Superior Court of Pennsylvania (May 04, 2018)• 7 month old with unexplained fractures later found dependent due to abuse and placed in foster

care; 2 yo placed with parents and case dismissed following first review. Court did not find aggravated circumstances.

• Parents fully comply with services at subsequent hearings• Judicial officer refused placement with paternal grandparent that had been 2 yo’s placement,

refused to allow in defense medical experts to provide medical explanation and changed permanent plan to

• Parents rights were later terminated• Appellate court reversed permanency orders and vacated termination.• “Tellingly, the court’s refusal to provide kinship care or reunify N.M. with Parents has provided the

evidentiary platform to support DHS’ termination petition. In essence, this is an example of judicially-created parental alienation.”

• This win is a cautionary tale. If you have a medically complex case consider getting experts to adequately investigate your case early. OPD can help connect you with resources!