CASA Legal Training.

CASA Legal Training

Agenda Roles & Responsibilities Laws, Court Proceedings
GAL and CASA Volunteer Other Legal Participants Laws, Court Proceedings Indian Child Welfare Act and State Law Initial Court Proceedings Permanency Options

Case Hypothetical Maggie Franco Olivia Mark Yolanda
Note to Facilitator: Be sure to familiarize yourself with the case hypothetical before the training. Be prepared to tell the story if necessary, rather than have the participants read and absorb the information. Talking Points: Handout 7 [Case Hypothetical] We’ll be using this case hypothetical to illustrate points made in training Give participants 5 minutes to read through the hypothetical Ask questions about the hypo: What do we know about Maggie? What do we know about Franco? Where are Olivia’s and Mark’s fathers? What do we know about each child? What was the substance of the report? Has OCS been involved with the family before? What else is important? Based on what we’ve talked about this morning, will ICWA apply? What information do you need? BREAK

CINA Court Participants
Legal Party Representative GAL/CASA; Attorney Attorney (Public Defender , OPA, private) ICWA worker Assistant Attorney General Attorney if necessary Child/youth Parents, guardians, Indian custodians Child’s Tribe Office of Children’s Services Guardian ad litem/CASA volunteer “Legal party” means right to notice, opportunity to be heard; right to be represented Mention grandparents and caregivers have right to notice and participate, but are not legal parties Public can also attend, except in certain circumstances (first hearing, hearings with confidential info); can’t talk about it

Other professionals involved in case also have legal and ethical duties
Educators Physicians Therapists Substance abuse treatment providers Foster parents or other caregivers Talking Points: Other professionals also have legal and ethical duties (and challenges), but it is beyond the scope of this session to discuss them here. Note that links to the ethical codes for all the legal participants as well as for educators, treatment providers and foster parents are in the resource materials

Roles & Responsibilities
Awareness of your own profession’s ethics and expectations Appreciation of the roles and ethical obligations of other stakeholders Understanding of the challenges faced by all of the professionals involved in a case What do we hope to accomplish by talking about R&R? Hope to increase your awareness of your own professional obligations and your appreciation for the roles and expectations of the other professionals involved in your cases, and an understanding of the challenges we all face Ideally, the lives of the children and families will be better than when they entered our system and there will be no need for them to become reinvolved in the system Lack of such awareness, appreciation and understanding can cause a breakdown in the capacity of our child welfare system to work for the benefit of our clients. Set the stage: We are here to talk about our working relationships and how they affect the children and families involved in CINA cases.

GAL/CASA Roles & Responsibilities
Office of Public Advocacy – where do you fit in? General information on role and qualifications of GAL/CASA Legal duties and how they’re carried out between GAL and CASA Working with the GAL - expectations Introductory slide – these are the topics we’ll be covering regarding the CASAs R&R

Guardian ad litem (GAL)
General Information: Role: represents and advocates for best interests of child in light of federal and state law GAL not necessarily an attorney Contact with child Contact with other parties Contact with court Confidentiality issues Testimony [These are the CIP Notes] – need to simplify; add CASA ethics? Note to Facilitator: This slide is animated, with bullets appearing one at a time. Talking Points: “Guardian ad litem” is a legal term meaning guardian for the lawsuit GAL not the same as a legal guardian; a GAL has no control over the person or property of the child and does not provide a home for the child. GAL is an advocate for the child's best interest (but not necessarily the child’s expressed wishes) GALs do not have a separate Code of Ethics. CINA Rule 11 is patterned after and covers many of the same topics contained in the Code of Professional Responsibility for attorneys. [CASAs have ethics – did they go over it in session 1?] GALs are appointed in every CINA case. The Office of Public Advocacy (OPA) is responsible for providing GALs OPA has staff offices in larger communities OPA also contracts with private GALs in around the state. There is a link to OPA’s website in your resource materials with more information. Qualifications for a GAL are found in CINA R 11(c) GAL not necessarily an attorney Unlike in many states, there is no requirement in Alaska that the GAL be an attorney. Attorneys may be assigned or appointed to represent non-attorney GALs when legal representation is necessary. Contact with child CINA Rule 11 does not specify how often the GAL should have contact with the child – “as often as necessary to ascertain and represent the child’s best interests.” OPA has Guidelines (found on OPA’s website) setting forth expectations for frequency of contact between the GAL and the child. Under CINA Rule 11(g), reasonable access to the child cannot be denied by any party or service provider or by the child’s attorney, if one has been appointed. Attorneys or representatives of other parties to the case must have the GAL’s or the OCS caseworker’s consent (or a court order) to discuss the case with the child. Contact with other parties If a party is represented by an attorney, the GAL must have the attorney’s consent before communicating with the party about the substance of a case. Contact with court Unless all parties consent, a GAL shall not engage in ex parte communications with the court concerning a pending case except for scheduling and other administrative purposes when circumstances require. Confidentiality issues The GAL is entitled to receive confidential records and other information regarding the child. The court order appointing the GAL serves as a release of information. Under CINA Rule 9(b): For children under 12, the GAL is the holder of the child’s psychotherapist/child privilege. The GAL decides whether to release therapeutic records/information about the child to other parties, or whether to claim the child’s privilege. A court can order the information released under certain circumstances. CINA Rule 9(b) is discussed in detail in the “Information Sharing” module of the CIP training curriculum and will be discussed a little more this afternoon. There is no GAL-child privilege Child’s statements to the GAL are not confidential GAL may disclose information if disclosure is in the child’s best interests. GAL may seek a protective order to keep certain communications confidential in accordance with discovery rules. Testimony GALs rarely testify in court. Under CINA Rule 11(h), GALs can only testify if the court determines: the testimony relates to an uncontested issue; or the information is not available from anyone else; or there is some other “compelling need” for the testimony.

Advocate Mentor CASAs are not……… Expert opinion Friend
Advocate for expressed interests (though must disclose) Decision maker Service provider Visit supervisor CASAs are not……… Advocate Mentor Mention what we’re not: Expert opinion Advocate for expressed interests (though must disclose) Friend Decision maker Service provider Visit supervisor

Working with the GAL Case Assignment Meeting
Summaries of home visits, meetings Preparing for court Writing reports Resolving disagreements The Volunteer Handbook covers all these topics: Initial case assignment meeting: Get acquainted Exchange contact information Discuss communication expectations and means Generate initial “to do” list Summary notes of HVs and meetings Timing to communicate before court depends on individuals involved Schedule and responsibility for written reports – depends on individuals Procedure for resolving disagreements – contact program coordinator; program coordinator and GAL’s supervisor will assist; if nec’y, GAL’s position controls

GALs – What Can They Bring?
Interest in improving the lives of children through the court process Training in issues related to child well-being and the court process Independence; sole focus is on child’s best interests Longevity Explain we’ll be asking this question about each role in a case

CASAs – What Can They Bring?
Interest in improving the life of the child through the court process Time, energy and focus Relationship with child “Outside the system” point of view Community action potential Solicit more from class

GALs - Challenges High caseloads
Geographical barriers limit contact with children Lack of legal expertise Lack of culturally appropriate placements Lack of services for families System delays Explain we’ll be discussing this for each role

CASA Volunteers – Challenges
Lack of experience in CINA system Uncomfortable speaking in court Intimidated by other case participants What challenges will the GAL/CASA experience in our hypothetical? Solicit more from group [Is there a more positive note to end on before break?] Break time!

Ensure that all parties have notice and an opportunity to be heard
Judges Duties in CINA Cases Ensure that all parties have notice and an opportunity to be heard Determine factual and legal issues at every stage in accordance with state and federal law Make timely decisions Talking Points: Go through slide First bullet is “Due Process” Last bullet: make sure case is moving forward (hopefully w/ child’s sense of time)

Judges – What Can They Bring?
Legal expertise Courtroom experience Commitment to public service Authority to convene parties in court Authority to make and carry out orders Last two bullets really important

Judges - Challenges Heavy caseloads; lack of court time
Delays caused by circumstances beyond control Inability to change way cases are dealt with Balance between being active/involved and respecting separation of powers (deferring to OCS expertise) Not knowing what’s going on behind scenes Magistrate/Judge role and scheduling Lack of services for families Application to Hypo: What challenges might Judge James face in our case?

CASA and Judge No ex parte communication
Speak up in court; judges want to hear from you Interaction is only in court and through written materials (reports, legal filings) Some judges don’t understand/appreciate CASA role Beaty tips

Office of Children’s Services
Family Services Provide reasonable/active efforts Case planning Monthly visits with children Monthly contact with parents Facilitate family contact Communicate with Tribes, service providers File reports Conduct relative searches Determine placements Note that some of these duties are the same as GAL/CASA – ask class to identify

Office of Children’s Services
Administrative Duties SSI applications PFD applications Medicaid applications Maintain IV-E eligibility Facilitate TDMs and administrative reviews License and monitor foster homes Statistics Federal reviews Note that some of these duties are the same as GAL/CASA – ask class to identify

OCS – What Can They Bring?
Commitment to help families and keep children safe Training in analyzing safety, assessing service needs, and providing guidance to families Ability to establish relationship with parents and children Knowledge of available services Hypo: What do we know about Irene?

OCS – Challenges Balance between responsibility to place child’s safety first and desire to reunify as quickly as possible Managing duty to maintain confidentiality, but also to disclose information when there is a need to know Everyone second-guessing decisions (supervisors, GALs, attorneys, tribes, judges) Avoiding taking the adversarial court process personally Lack of services, especially in rural areas High caseloads, high turnover, difficult clients, reports, reports, reports . . . Application to Hypothetical: What challenges might Irene face?

CASA and OCS Important relationship
OCS perception of CASA Volunteers varies Find balance between advocating and nagging Copy s to GAL Strategies for handling problems with workers [There’s nothing in Vol. Handbook about communication with OCS – elsewhere in training?] Other than relationship with children, this will be the most important relationship Some SWs embrace CASA; some are jealous or perceive us as nags Important to find balance between advocating and nagging Beaty tips – best way to communicate

ICWA Workers Duties in CINA Cases
Respond to Notice of ICWA Proceeding to confirm whether Tribe is “child’s Tribe” Intervene if directed by Tribe If not an attorney, file Designation of Tribal Representative Ensure Tribe’s rights are protected Represent position of Tribe in court Provide information regarding extended family members and potential placement options Depending on Tribe, may have many other duties (e.g. participate in out-of-state cases; provide services) ICWA Workers

ICWA Workers – What Can They Bring?
Knowledge of child, parents and extended family Historical context of families Knowledge of relevant cultural practices Knowledge of resources and support systems Resource for family or tribal placements Resource for culturally relevant treatment and services Hypo: what might Ida bring?

ICWA Workers – Challenges
Limited training and formal education Part time position; other non-CINA duties High turnover Court culture/process unfamiliar and uncomfortable Limited or no access to attorney representation Often geographically isolated from other parties Difficulties with telephonic participation Other parties unwilling to accept traditional healing methods Application to Hypothetical: Ida’s potential challenges?

CASA and ICWA Worker Important relationship; natural alliance
Send introduction letter Communicate early and often Learn about Tribe’s culture and values Solicit ideas for culturally relevant services Consider joint home visits [Nothing in Vol. Handbook] Also very important relationship; can vary; should be natural alliance Beaty tips

Attorneys – Alaska Rules of Professional Conduct
A lawyer is a representative of clients, an officer of the legal system and a public citizen who has special responsibilities for the quality of justice. A basic tenet – Every person entitled to the assistance of attorney is entitled to one who is independent and competent. CIP Talking Points: Note that “lawyer” and “attorney” are used interchangeably. In CINA cases, we can have a lot of attorneys: Assistant AGs representing OCS; Attorneys representing parents, guardians and Indian custodians; Attorneys for older youth (more and more common) Attorneys for Tribes (occasionally) Attorneys for GALs (occasionally). Although judicial officers have their own Canons, as lawyers they are bound by the Rules of Professional Conduct as well. “Ethics” is a big deal for lawyers: Half-day bar exam Mandatory 3 hrs training/year to keep license (no other mandatory continuing ed) This slide provides a broad overview of the ethical rules that govern attorney conduct. Read through the slide

Client-Lawyer Relationship
Client determines objectives of representation; lawyer determines strategy By representation, the lawyer does not endorse client’s political, economic, social or moral views or activities Lawyer keeps client informed of status of case so client can make informed decisions Lawyer shall not reveal client’s confidence without consent CIP Talking Points: consider simplifying The client determines the objectives of the representation and makes decisions about what course of action to take in the case. The lawyer is bound by the client’s decisions unless it would be illegal or unethical for the lawyer to pursue. The lawyer makes strategic decisions about how to attain the client’s desired objectives. Example from hypothetical: Maggie, the mother in our case hypothetical, directs her attorney to contest probable cause; Maggie’s attorney decides what witnesses to call. Read second bullet point, and mention that this point can sometimes be forgotten in CINA cases. Yolanda is placed in a foster home with same-sex foster parents. Franco has strong views that homosexuality is a sin, and he directs his attorney to object to the placement on his behalf. By arguing Franco’s position, this does not necessarily mean the attorney shares Franco’s moral view. Read the third bullet point. Read the last bullet point Confidential information includes statements made by the client to the attorney and other information obtained about the client’s case during the course of representation. We’ll talk a little more this afternoon about the attorney-client privilege.

Lawyer’s Role as Advisor
Lawyer shall exercise independent professional judgment and render candid advice If client does not want to follow lawyer’s advice, lawyer must abide by client’s decision Lawyer may advise client of availability of alternative forms of dispute resolution CIP Talking Points: consider simplifying – A lawyer wears 2 hats: client’s advocate, and advisor. You don’t know what lawyer says to client behind closed doors. A lawyer should exert best efforts to ensure that decisions of the client are made only after the client has been informed of all relevant considerations. Advice of a lawyer to the client need not be confined to purely legal considerations. The lawyer may emphasize the possibility of harsh consequences that might result from assertion of legally permissible positions. But if the client does not want to follow the lawyer’s advice, the lawyer must abide by the client’s decision – and can’t tell anyone that the client is not following the advice. Read last bullet point Example from our case hypothetical: Maggie’s attorney explains what happens at a temporary custody hearing, and tells Maggie that it is his assessment that there is very little likelihood of prevailing at a contested hearing at this stage. The attorney warns that a lot of bad stuff may come out during the testimony. The attorney advises Maggie to stipulate to probable cause. The attorney may also advise Maggie that for her safety and wellbeing she should consider seeking alcohol treatment and staying away from Franco. After listening to the attorney’s advice, Maggie decides she still wants to contest PC – she does not think OCS should be involved with her family. The attorney must follow Maggie’s direction, and cannot tell the other parties that Maggie is not following his advice

Lawyer’s Role as Advocate
Lawyer shall not bring or defend a proceeding, or assert an issue, unless there is a basis for doing so that is not frivolous Lawyer shall not knowingly make false statements of fact or law; fail to disclose legal authority directly adverse to position; or offer false evidence Lawyer may not communicate ex parte with a judicial officer CIP Talking Points: consider simplifying Lawyers have a duty to zealously advocate for their clients, but that advocacy has limits. The lawyer must have a basis for asserting an issue or taking a position that is not frivolous; in other words, the lawyer must have a good faith argument in support of the client’s position. An action is not frivolous just because the lawyer believes that the client’s position ultimately will not prevail. Example from hypothetical: Contesting PC would not be frivolous (as there are facts in the hypothetical that support Maggie’s ability to be a safe parent), even though the attorney believes the state will be able to prove probable cause. The second bullet point speaks to a lawyer’s duty to the court – a lawyer cannot lie or mislead the court, and has a duty to disclose directly adverse legal authority (such as Supreme Court case law) that has not been disclosed by an opposing party. And, as is the case for GALs, lawyers cannot communicate about the case with judges outside the presence of the other parties.

Interactions with Others
Lawyer cannot knowingly make false or misleading statement of fact or law to third person Lawyer cannot directly communicate with party who is represented unless party’s lawyer consents Lawyer should exercise special care when interacting with unrepresented party CIP Talking Points: consider simplifying Read first bullet point. However, this does not mean that the lawyer has an affirmative duty to inform an opposing party of relevant facts, Or that the lawyer may disclose confidential client information. Read the second bullet point. Examples in case hypothetical: Franco’s attorney cannot call Maggie to talk about the case unless Maggie’s attorney consents However: While OCS is represented by the Attorney General’s Office, direct communications between parents’ attorneys and case workers are common. This practice has been condoned for years, so there is an implicit consent to the contact. Infrequently, social workers or AAGs will direct that any communications from a parent’s attorney be in the presence of the AAG. Read the third bullet point. A lawyer for one party cannot give legal advice to an unrepresented party, other than the advice to get a lawyer. A lawyer should also make sure the unrepresented party understands that the lawyer’s role is not disinterested; the lawyer represents a party who may have an adverse position. In CINA cases, oftentimes at the initial court hearing the parents do not yet have attorneys; the AAG must be careful to explain the AAG’s role and the parents’ options, including the option of requesting an attorney appointment.

Assistant Attorney General
AAG Duties in CINA Cases Provide formal notice of case Advise OCS of options and likely outcomes at every stage Maintain confidentiality Discuss all information so OCS can make informed decision how to proceed When appropriate, attend out-of-court meetings and administrative reviews Zealously represent OCS consistent with law and facts Monitor cases to ensure OCS acting in accordance with law, policy and procedure Assistant Attorney General CIP Talking Points: In addition to the general ethical rules that all attorneys must follow, AAGs have duties specifically related to CINA cases. The AAG represents OCS as an agency (i.e. OCS is the “client”), as long as OCS is acting within statutes, regulations and policy. Go through the bullet points. While AAGs zealously represent OCS and its position in court, they are also mindful of the needs and/or position of the "state" as a whole, and may refer to other considerations, such as moral, economic, social & political factors, that may be relevant. Attorneys include that notion in strategy discussions with OCS when necessary or appropriate. Fundamental disagreements between AAGs and OCS are very rare.

AAGs – What Can They Bring?
Commitment to public service Legal expertise Negotiations skills Courtroom experience Knowledge of case facts when OCS caseworker turnover

AAGs - Challenges High caseloads Client turnover
Communication with client Sometimes difficult to justify active or reasonable efforts argument Disagreement with OCS position Example from case hypothetical: What if Amy disagrees with Irene’s decision to keep the children in foster care rather than returning them home?

CASA and AAG Most interaction will be at court
AAG may need information from GAL/CASA before going on the record Usually not much direct interaction outside court Beaty tips

Parent Attorney Duties
Advise client of options and likely outcomes at each stage Maintain confidentiality Discuss all information so client can make informed decision how to proceed When appropriate, attend out-of-court meetings and administrative reviews Zealously represent client consistent with law and facts Ensure reasonable/active efforts are made, including family contact Strategize when the plan is no longer reunification Talking Points: The parent’s attorney and many of the other stakeholders often have very different outcomes in mind. The bullet points in this slide describe a parent attorney’s ethical duties in the context of a CINA case. Go through each bullet point. Mention that attorney sends copy of OCS file to client Note similarity with AAG slide.

Parent Attorneys – What Can They Bring?
Commitment to public service Legal expertise Negotiations skills Courtroom experience

Parent Attorneys - Challenges
High caseloads Difficult clients Incarcerated clients Missing parents Client’s position changing during case Presenting case with limited evidence Bearer of bad news Clients getting “legal” advice from others Legal arguments changing from one case to next Can be the most difficult job in CINA case Give examples as you go through bullets Hypo: what challenges might Peter have in this case?

CASA and Parent Attorney
Need attorney’s permission before contacting client Most interaction will be in court Keep in mind lawyer’s ethical obligations Relationship varies, depending on position Strategies for handling problems Can be troubled relationship, unless CASA supports parent’s position (From PD – don’t be afraid to call attorney to discuss client; don’t discuss anything that relates to criminal charges) Beaty – reality check

Youth Attorney Youth Attorney Duties
Discuss all information so client can make informed decision how to proceed Advocate for youth’s expressed wishes When appropriate, attend out-of-court meetings and administrative reviews Maintain normal client-lawyer relationship Advise clients of options and likely outcomes at each stage Zealously represent client consistent with law and facts Maintain confidentiality Hypo: What circumstances might warrant asking for attorney for O, M or Y? Possible answer: OCS plans to place all the children with their grandmother in the village The Tribe, the GAL/CASA and Maggie all agree Olivia, age 12, is adamant that she wants to stay in her foster home

Attorneys for Youth – What Can They Bring?
Commitment to public service Advocate for youth’s wishes Confidential attorney/client relationship for youth Legal expertise Negotiations skills Courtroom experience

Attorneys for Youth - Challenges
Lack of training on representing youth Ability to locate youth Ability to communicate with youth Logistics of getting client to court Clients with disabilities Clients taking unsafe positions Clients changing position during case Being careful not to exert too much influence Application to hypothetical: Olivia tells her attorney the reasons she wants to stay in foster care: She has a crush on her 14-year-old foster brother (which she doesn’t want anyone to know) She likes her school and her teacher She has many friends at school She wants to be able to visit with her mom She does not want to live in a remote village because it’s too boring (but she doesn’t want her grandmother or her mother to know that) What is attorney’s obligation?

CASA and Youth Attorney
Can be amicable relationship Provide background information Consider introducing youth to attorney Attorney can’t prevent CASA from meeting with youth (but can be present) Beaty (or facilitator) tips

Laws and Court Process Afternoon agenda (insert into slide)

Sources of Law Constitution Statutes Regulations Court Rules Case law
Laws passed by legislature Regulations Developed by government agencies Court Rules Established by Supreme Court Case law Legal principles based on Supreme Court decisions Talking Points (from CIP curriculum): We normally think of “law” as the laws that are passed by Congress or our state legislature, but there are many other sources of law Constitutions The foundation for all laws in the United States is the U.S. Constitution, which established basic rights for United States individuals, and established the three branches of government: legislative, executive, and judicial. Each state also has its own constitution, which must be consistent with the U.S. Constitution, but can be more protective of individual rights. A good example of the latter is Alaska’s constitution, which specifies a right to privacy that is not contained in the U.S. Constitution. Statutes Statutes are laws passed by the legislative branch of federal and state government. Federal and state statutes must be “constitutional”; i.e., they must be consistent with the constitutions. An example of a federal law that we’ll be discussing a lot during this training is the Indian Child Welfare Act. The state statutes relating to CINA cases are mostly found in chapters 10, 14 and 17 of Title 47 of the Alaska Statutes. We talked this morning about mandatory reporting laws, which are part of chapter 17. This afternoon we’ll talk in detail about the CINA grounds, found in chapter 10 In a few minutes, we’ll be talking about the relationship between federal and state statutes. Regulations Regulations are adopted by executive branch agencies to implement statutes. The regulations must be consistent with the statutes; and, like statutes, regulations are laws. Federal regulations are compiled in the Code of Federal Regulations (CFR); an example of federal regulations that apply in CINA cases is the 2016 ICWA Regulations State regulations are compiled in the Alaska Administrative Code (AAC); an example applicable to CINA cases is the foster care regulations adopted by the Alaska Department of Health & Social Services, which are found in title 7 of the AAC. Court Rules Adopted by Supreme Courts Court rules govern how cases are handled in court. Alaska’s Rules of Court are contained in a book about 3” thick; they include rules of criminal procedure, civil procedure, evidence rules, appellate rules, and more. In this training, we’ll mostly be talking about the Child in Need of Aid (CINA) Rules. Court rules, like statutes and regulations, have the force and effect of law. Case Law (Precedent) Another kind of law is called “case law” or “precedent.” As we’ll discuss a little more on Day 3, when a party to a case is unhappy with the decision by a trial court judge, that party has the right to appeal the case to a higher court. In Alaska, an appeal of a civil case heard before a superior court judge, such as a CINA case, goes directly to the Alaska Supreme Court. On appeal, the Alaska Supreme Court will decide whether the superior court decision was correct or erroneous. In addition to deciding that particular case, the Alaska Supreme Court will often interpret statutes, regulations, and rules and discuss general principles that can be applied and must be followed in all other cases in Alaska with similar facts or issues. A case can make its way to the U.S. Supreme Court either through appeals of federal court decisions, or by an appeal of a state supreme court decision involving a federal law or issue. The U.S. Supreme Court has discretion on whether to hear an appeal; it is not a matter of right like an appeal to the Alaska Supreme Court. U.S. Supreme Court decisions must be followed by all state courts An example of an Alaska Supreme Court case is In re CRH, where the Court for the first time (in 2001) recognized Tribes’ concurrent jurisdiction over child protection cases and their ability to have state CINA cases transferred to tribal court. (We’ll be talking about transfer of jurisdiction tomorrow afternoon.) NOT law: Policy Manuals This morning we talked a lot about the OCS CPS Manual. This extensive manual is not law, but it outlines the policies and procedures that are supposed to be followed by OCS employees in conducting their business. BIA Guidelines This afternoon, we’ll be referring to Guidelines adopted by the Bureau of Indian Affairs (BIA) to interpret the provisions of ICWA. The BIA Guidelines were originally written in 1979, to give guidance to state courts handling ICWA cases The Guidelines were substantially rewritten in 2016 They are not law and do not have to be followed, but our courts often refer to them for guidance on how to interpret ICWA. Treatises Courts also sometimes rely on treatises written by recognized experts. These treatises are not law. An example we’ll mention this afternoon is Craig Dorsay’s ICWA Manual, which is cited often by the Alaska Supreme Court when addressing active efforts.

ICWA and State Law State law applies to all children in Alaska
ICWA applies if child is “Indian child” Member of federally recognized Tribe; or Child of member and eligible for membership State law applies to all children in Alaska Alaska Supreme Court: Follow both laws if no conflict; If conflict, ICWA provisions govern CIP Talking Points: During this training, we’ll be talking a lot about both the federal Indian Child Welfare Act (ICWA) and the Alaska state CINA statutes Read through the first bullet point, which contains the definition of “Indian child”, and note: The Tribe determines who its “members” are – for example, it can be tied to descendency or blood quantum “Membership” is not necessarily the same as “enrollment” – a person can be a member of a Tribe even though he or she has not enrolled The fact that a child has Native heritage does not automatically mean s/he is a member of a Tribe or eligible for membership. Applicability of ICWA to a particular case depends on the status of the child; so, even if one parent is non-Native, that parent is entitled to ICWA’s protections if the child is an “Indian child.” State CINA laws apply to all children residing or found in Alaska So how do we know which law to follow if a child is an “Indian child” living in Alaska? The Alaska Supreme Court has told us that both laws need to be followed if there is no conflict between the provisions Most provisions are consistent or complementary But if there is a conflict, then the federal law (ICWA) provisions must be followed We’ll be pointing out the areas where there are conflicts during the training. The state law provisions we discussed in conjunction with the last slide relating to the grounds for declaring a child a CINA apply, as do the state law timelines and court process and procedures (because ICWA does not address these things). What if you’re not sure whether the child is an “Indian child”? 2015 BIA Guidelines [and/or federal regulations] state that if there is reason to believe the child is an Indian child, the court should treat the child as an Indian child unless and until it is determined that the child is not a member or not eligible for membership in an Indian tribe This is good practice anyway: If ICWA’s stricter standards weren’t followed and it is later determined that ICWA applies, you may have to revisit prior court orders And, if the stricter standards were followed and it turns out later that ICWA does not apply, there should be no problem

Continuum Activity: Part 1
Sexual Abuse Physical Abuse Emotional Abuse Activity 1.11: The continuum of abuse (35 minutes) Part 1: This activity picks up from the reading you did earlier this week. You read about how child abuse can be seen as part of a continuum of behaviors. At the low end of the continuum are behaviors you might consider poor parenting or disrespectful behavior; at the high end are behaviors that lead directly or indirectly to the death of a child. In the PPP, the facilitator has created continuums for physical abuse, emotional/ verbal abuse, sexual abuse and neglect. In the large group, think of behaviors that you consider abusive or neglectful, and discuss where on the flipchart continuums they would fall. For each category try to identify one behavior that falls at the top, middle and bottom of the continuum. Part 2: Look at lists generated by groups, starting at most serious With the full group’s input, put checkmark by behaviors that meet legal definitions Neglect

Child in Need of Aid AS 47.10.011 (1) *Abandonment
(2) Incarcerated parent (3) Custodian unable/ unwilling to care (4) Medical neglect (5) Runaway child (6) *Physical harm (7) *Sexual abuse (8) *Mental injury (9) *Neglect (10) Substance abuse by parent (11) Mental illness of parent (12) Delinquent acts of child coerced by parent A child is a CINA if one or more of these 12 sections apply Note that abuse/neglect are not defined in ICWA, so no conflict Refer class to handout Sections with * are defined in statute, as summarized in handout Go briefly through each

Three Questions Three questions need to be answered throughout the case and at every court hearing: Can the child remain or return home? “Removal Findings” If the child is out of the home, where should the child be placed? “Placement Preferences” Is OCS providing appropriate services to the family? “Active/Reasonable Efforts”

1. Removal Findings ICWA State Law
At emergency stage: removal necessary to prevent imminent physical harm Child likely to suffer serious emotional or physical harm “Clear and convincing” evidence Expert witness testimony State Law Emergency stage: removal necessary to protect child’s life or to provide medical attention Continued placement in the home contrary to the welfare of the child CIP Talking Points: - simplify A question that should be asked at every stage in a case is whether a child can remain in the home or be returned home. The legal term you will hear is “removal findings” – which refers to findings that must be made by a judge to justify a child being removed from home or remaining out of the home. ICWA and state law are different; ICWA must be followed if Native child Remind class about video describing children being moved when not necessary – that’s why the strict provisions ICWA cases: An emergency removal must be necessary to prevent imminent physical harm to the child Later in case (not sure when): judge must find that “continued custody by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.” There must be clear and convincing (i.e. a lot) of evidence supporting the finding And there must be expert witness testimony (ideally, someone with knowledge of tribe’s cultural practices; NOT the OCS caseworker) State law is different: An emergency removal must be necessary to protect a child’s life or provide medical care; sex abuse of child or sibling Later: there must be a finding that continued placement in the home is “contrary to the welfare of the child” – ambiguous terms These are the legal definitions OCS policy looks at the child’s safety or high risk to the child CASA Manual: “minimally sufficient level of care” Hypo: Did OCS make emergency removal? Do you agree it met ICWA definition? OCS Policy: safety/high risk CASA Manual: minimally sufficient level of care

2. Placement Preferences
If the child cannot be in the home, where should the child be placed? General requirements (ICWA and state law): Least restrictive setting that most closely approximates a family Within reasonable proximity to child’s home Taking child’s special needs into account Taking child’s or parent’s preference into account Talking Points: If child cannot be placed home with parent or Indian custodian, then it must be determined who child should live with. ICWA and state law both address this issue; In fact, state law is modeled very closely after ICWA, though there are some differences. Both ICWA and state law have same general requirements for placement 2016 ICWA Regulations require placement in proximity to extended family “or siblings” Read through bullet points.

Placement Preferences*: Foster Care
ICWA State Law Extended family member Foster home licensed, approved or specified by tribe Indian foster home licensed by state Institution approved by tribe or operated by Indian organization Adult family member Family friend who meets licensing standards Licensed foster home Institution with program suitable to meet child’s needs (Explanation should be way less complicated….) Talking Points: This slide compares placement preference orders under ICWA and state law. Although our case hypothetical is an ICWA case, folks should also be aware of state law for their non-ICWA cases The U.S. Supreme Court (in Holyfield) referred to the placement preferences as the most important substantive requirement of ICWA. The Alaska Supreme Court (in Tununak I), discussed the importance of following the ICWA placement preferences “to protect the rights of the Indian child as an Indian and the rights of the Indian community and tribe in retaining its children in its society.” Under ICWA, the first placement preference for foster care is a member of the child’s extended family. “Extended family member” is determined by tribal law or custom. If there is no tribal law or custom defining extended family, then the ICWA default definition is used: grandparent, aunt or uncle, adult brother or sister, brother-in-law or sister-in-law, niece or nephew, first or second cousin, or stepparent. Read through the other three ICWA preferences. These placement preferences also apply in legal guardianships and “preadoptive” placements Under state law, first placement preference is with an adult family member, which is defined as a grandparent, aunt, uncle, adult sibling, or parent/guardian of the child’s sibling. The second placement preference is placement with a family friend “Family friend” in non-ICWA cases not defined in statute But state law now provides that in ICWA cases, “family friend” includes members of the child’s tribe, a member of the tribe in which the child’s parent is a member, and another Indian family member] Read through the other two In ICWA module, we go into more detail about the placement preferences, covering such subjects as tribe’s ability to alter preferences; role that social and cultural standards play in determining suitability of placement. Placement preferences must be followed “in the absence of clear and convincing evidence of good cause to the contrary.” “Good cause” is not defined in ICWA or in state law. 2016 ICWA Regulations state that good cause to depart from the placement preferences should be based on one of five considerations: The request of the parents, if they attest they have reviewed the options that comply with the order of preference The request of the child, if the child is able to comprehend the decision that is being made The presence of a sibling attachment that can be maintained only through a particular placement; The extraordinary physical or emotional needs of the child, such as specialized treatment services that may be unavailable in the community where families who meet the criteria live; The unavailability of a placement after a diligent search According to the regulations, a “good cause” determination may not be made: Based the socioeconomic status of any placement relative to another placement. Based solely on ordinary bonding or attachment that flowed from time spent in a non-preferred placement that was made in violation of ICWA The good cause exceptions were intended to be narrow and not based upon an independent consideration of the child’s best interests Past Alaska Supreme Court cases, which held that any factor relating to the child’s best interests can be considered, may no longer be good law *Must be followed unless “good cause”

Placement Consideration: Siblings
OCS must make reasonable efforts to place siblings together (if residing in same home when taken into custody) Court shall recognize presumption that maintenance of sibling relationship is in child’s best interests “Sibling” refers to children related by blood, marriage or adoption Simplify language Talking Points: Another consideration in making placement decisions is whether siblings can be placed together. Read through the bullet points These are relatively new additions to state law, recognizing the importance of the sibling relationship, especially with abused and neglected children. As noted in previous slides, the 2016 ICWA Regulations recognize the importance of the sibling relationship: Foster care placements must be in reasonable proximity to child’s home, extended family, “and/or siblings” And, maintaining a sibling bond may constitute good cause to deviate from the placement preferences

Team Decision Making TDM required:
For any child who may be placed out of home Non-emergency transfer of placement Youth exiting custody under APPLA Before child goes for overnights in the home Before child is returned home Residential treatment/therapeutic foster care Trained facilitator guides the meeting Team composition If no consensus, OCS makes decision CASAs likely to spend lots of time at TDMs CPS Manual requires meeting for potential placement changes Read bullet points Idea behind TDMs is to gather family and people familiar with family together to share information and attempt to reach consensus on whether, when, where and how placement change should occur OCS trained facilitator guides the meeting. The team may include: Family Extended family Friends and neighbors Resource families Tribal representatives Service providers School personnel OCS staff Other professionals involved with family (such as GALs, CASAs, and attorneys) Children age 10 and over may participate if they choose. If there is no consensus, OCS, as legal custodian, makes decision and provides notice to legal parties. Unless there is an emergency or some other good reason, implementation of placement change that wasn’t agreed upon will not take place for 10 days, giving parties chance to bring matter before judge.

Apply to Hypo Are placement preferences being followed?
Whose responsibility is it to make sure placement preferences are being followed? What steps can the CASA volunteer take? In pairs, discuss these 3 questions. After 5 minutes, get answers.

3. Active/Reasonable Efforts
How can the family be helped? ICWA – Active Efforts State law – Reasonable Efforts Must be addressed at every court hearing Talking Points: In addition to removal findings and placement preferences, the third substantive issue that must be addressed at every court hearing if child is out of home is whether OCS has made or is making active or reasonable efforts to reunify family. This is another area where ICWA and state law conflict, so ICWA provisions will govern in ICWA cases.

ICWA: Active Efforts “Active efforts” must be made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family No pat formula; case-by-case Passive: expecting parents to develop their own resources to satisfy case plan Active: social worker taking parents through steps of case plan For example, just handing Franco a case plan that requires him to obtain substance abuse treatment would be passive; actually making referrals and providing transportation would be active.

State Law: Reasonable Efforts
OCS to make timely, reasonable efforts to provide “family support services” to children and families Including services provided by community, church, or service organization OCS duty to: Identify needed services Actively offer or make referrals to services Document its actions State law is phrased differently, but requires the same basic things.

Visitation as Active/Reasonable Effort
Legislative findings Reduces trauma for child Enhances likelihood that child will return home Visits should be frequent, regular, reasonable OCS required to provide reasonable visitation between child and child’s parent and family Court may order written visitation plan Visits can be denied if clear and convincing evidence of harm to child If safe, OCS can require foster parents to provide opportunities for visitation CIP Talking Points: Visitation (also called “family contact”) is one aspect of active and reasonable efforts. The CINA statutes also address visitation as a separate right. In its legislative findings, the legislature recognized that visitation reduces trauma for the child and enhances the likelihood that the child will be able to return to the home, and that OCS should encourage frequent, regular, reasonable visitation of the child with the child’s parent and family members. The law requires OCS to provide reasonable visitation between the child and the child’s parent and family members. OCS is to consider the nature and quality of the relationship that existed before the child was taken into OCS custody. The court can require OCS to submit a written visitation plan to the court. OCS can deny visitation if there is clear and convincing evidence that visits are not in the child’s best interests. A parent or adult family member who is denied visitation may request a court hearing. For children in foster care, if OCS finds it is in the child’s best interests and that the foster family will not be placed in undue risk of harm, OCS can require the foster parents to provide regular opportunities for visitation with the child by the parents. This does not have to be in the foster parents’ home, but it can be.

Family Contact Policy Begin within 5 days of removal
Sibling contact should be frequent, unless unsafe Family Contact Plan Developed with family, caregiver, Tribe, GAL Flexible and creative Include family activities Supervision levels: Unsupervised Intermittently supervised Structured family time (low to high supervision) Not used as threat/discipline to child or to control/punish parent CIP Talking Points: OCS’s family contact policy is detailed in the CPS Manual If possible, in-person family contact should begin within five days of the child being removed from the home. If siblings have been separated, contact between the siblings should be frequent unless OCS determines that frequent contact would be contrary to the safety or well-being of any of the children. OCS is required to develop a written Family Contact Plan with the input of the children, the family, the out-of-home care provider, the Tribe and the GAL. The plan should be flexible and creative, taking into account the unique circumstances of the family’s situation. Parents should be supported in attending activities with the children, such as school functions, extra-curricular activities, medical appointments, family gatherings and community events. Family contact should take place in the least restrictive, least intrusive environment possible. Depending on the situation, contact can be: Unsupervised, which could include overnights; Intermittently supervised (involving one or more check-ins by a family contact supervisor); or Structured family time (with low, moderate or high supervision by a family contact supervisor). Family contact should not be used as a threat or a form of discipline to the child, nor as a means to control or punish a parent.

Apply to Hypo What sorts of reunification services might be offered to assist the family? Be sure to consider all family members! What is the CASA’s role in identifying services? If the children are placed with relatives in the Village, what are some ideas to facilitate family contact? Again in pairs, discuss these questions Solicit answers Break after activity

CINA Court Process Talk briefly about intake/initial assessment – i.e. stuff that happens before court Hypo: Report from school; IA interviewed family, reviewed file; removed kids Look at flow chart We’re only going to talk about first 120 days Later training will go through following stages

Petition filed Talking Points:
A CINA case starts with the filing of a Petition.

CINA Court Process Petition Filed Within 12 hours of emergency custody
Contains facts supporting CINA grounds Court notifies GAL CASA Program staff notifies CASA Add non-E Hypo: emergency?

Temporary Custody Hearing
Petition filed Temporary Custody Hearing Talking Points: This is the first court hearing in the CINA process, Sometimes also referred to as the Emergency Custody Hearing or the Probable Cause Hearing.

CINA Court Process Temporary Custody Hearing Timing:
Within 48 hours of emergency petition being filed Within “reasonable time” of non-emergency Determine “probable cause” May be postponed to obtain attorney [3 questions to be addressed at all hearings] Add non-emergency petitions re timing Add reality – 3 hearings, 3 different mag/judges Hand out judge checklist (?), go briefly through it

Pre-adjudication matters
Petition filed Temporary Custody Hearing Pre-adjudication matters Talking Points: Most of the work on a case occurs outside the courtroom setting. Particularly at the beginning of a case, there is a lot going on. Adjudication

Non-Court Activities Relative searches
Assessments for parents and children Services for parents and children Family Contact Children’s educational needs Gathering records Hypo: What will you do?

Meeting of the Parties or Initial Case Conference (ICC)
Timing: at least 30 days before PTC Purpose: ensure case plan in place Other likely Issues: Placement/family contact Relative search Paternity testing Tribal identification Whether adjudication will be contested Submit written summary to court CIP Talking Points: Go briefly through the slide (PTC = pretrial conference). Note: there can be a disconnect between the rule’s requirement that there be a case plan in place by the time of this meeting and OCS’s policy regarding the timing for creating the case plan. Solicit information from participants on practice in different jurisdictions (get one volunteer from each place): title of the meeting; how it gets set; when and where it occurs; whether all parties attend; whether there is a specific written form used; and whether the meeting is useful.

Pretrial Conference Timing: not specified
Purpose: determine whether parties agree or disagree that child is CINA Issues: Location/service of parties Trial management Discovery Settlement possibilities Child’s testimony? CIP Talking Points: Court is required to conduct a pretrial conference to determine whether adjudication will be contested. Issues to be addressed at PTC are listed in the rule, and include: Efforts to locate and serve parties; Trial management issues (such as simplifying the issues, streamlining admission of documents into evidence, and establishing time limits for presentation of evidence); Outstanding discovery issues; Whether mediation or settlement conference should be considered; and Whether and under what conditions a child will testify. This rule was designed as mechanism to avoid unnecessary postponements of adjudication hearings and to keep contested hearings to manageable lengths.

OCS Administrative Review
Required by federal law every six months if child out of home or on trial home visit OCS Policy: first review occurs at 3 months Purpose: review case plan and permanency goals Conducted by OCS admin reviewer at OCS Invitees: parties, non-intervening tribes, grandparents, care providers ICWA cases: address placement preferences, tribal notification CIP Talking Points: Title IV-E requires that OCS conduct administrative reviews every six months if child is out of home or on trial home visit. By OCS policy, administrative reviews are held for all children, regardless of placement status. First review occurs 3 months after removal (or 3 months after OCS opened its case for children still in home). Reviews are then held every 6 months until case is closed. Go through the remaining bullet points OCS policy manual goes into a great deal of detail about what topics will be covered during review. At conclusion of review, recommendations are ed to worker, GAL and AAG. Ask for a show of hands as to how many participants routinely attend the administrative reviews.

Temporary Custody Hearing
Petition filed Temporary Custody Hearing Talking Points: Next major court hearing is the adjudication Definition of “adjudication”: decision; judgment Adjudication

Adjudication Within 120 days from PC finding
Judge determines whether child is CINA Can be done by stipulation or testimony If judge determines child not CINA: Child released from department’s custody Returned to parent, guardian or custodian Case dismissed If child is CINA, additional inquiries: Removal findings Placement preferences Active/reasonable efforts CIP Talking Points: The adjudication hearing is supposed to be held within 120 days of the probable cause finding. Can be delayed for good cause, considering age of child and possible adverse impact delay may have on child. Purpose of the adjudication hearing: determine whether child is a CINA i.e. whether child has been subjected to one or more of 12 situations listed in statute. Most adjudications in Alaska are uncontested, with parties submitting written stipulation (agreement). Usually, terms of stipulation are result of informal negotiations between parties, with parents admitting to one or more of the grounds alleged in petition. If parents contest adjudication, state has burden of proving, by preponderance of evidence, that child is a CINA. Hearsay evidence is not admissible. No right to jury trial in CINA cases. If, after hearing evidence, judge determines that child is not a CINA, child is released from OCS custody, returned home, and case is dismissed. If judge finds child is a CINA, judge must determine whether child can remain home or be returned home (“removal findings”); If child is out of home, judge must determine: Whether placement preferences are being complied with, Whether reasonable/active efforts are being made to return child home.

No idea on day one what will happen in a case, but judge is supposed to choose a direction at one year into the case

Permanent Plan Options
Reunification Adoption Legal guardianship Permanent placement with fit and willing relative Another Planned Permanent Living Arrangement (APPLA) If time, give examples of factual scenarios in our hypo that would lead to each plan CIP Talking Points: This slide lists the permanency options Although it’s not specified in the statute, these are generally considered to be in preference order because they offer the most to the least “permanence.” Read through the list Tell participants we’ll discuss each option and how it can be implemented this afternoon

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