“Choosing” a Lawyer in Juvenile Child Welfare Court

Often, people hold the belief that a private pay attorney is better than a court-appointed one. Certainly this can be true, but in juvenile court it’s often not true. Here’s why.

  1. The overwhelming majority of parents in juvenile CINA (Child in Need of Assistance) cases cannot afford a private attorney. This, of course, means that most of the attorneys in this area are on the court appointment list. That doesn’t mean those attorneys don’t do private pay work—it just means that the bulk of their cases are likely court appointed. A private pay attorney who is not on the court appointed list may not do a lot of juvenile CINA work.
  2. In order to be on the court appointed attorney list for juvenile court, an attorney musttake at least three hours of continuing legal education (CLE) specifically in the area of juvenile court. They are required to adhere to a higher standard of practice. This is not required of private pay attorneys. And as a practical matter, attorneys who practice primarily in juvenile court often attend far more than three hours of CLE in this area.
  3. Juvenile court is different from other areas of law; it is procedurally different (e.g., multiple hearings instead of one trial; exhibits are entered differently; rules of evidence and civil procedure are a bit different), but also philosophically It is not, as a general rule, as adversarial, and the goal is reunification of the family—not “win” vs. “lose.” Services are offered in furtherance of this goal. The court wants to see progress throughout the life of the case; it wants to see parents succeeding.

Because of these reasons, you may be better off with a court appointed attorney (if you qualify), even if you hire that attorney as a private pay attorney. They likely have far more experience in this area than a private pay attorney. Again, that doesn’t mean a private pay attorney can’t do a good job for you; it’s just that they may not have the same level of experience that a court-appointed attorney does.

My suggestion would be that if there is someone you have in mind, call the state public defender’s office to see if s/he is on the court appointed list for your county. If not, I would ask a few more questions of that attorney regarding his/her experience in juvenile court. I would ask if they are familiar with the federal and state laws regarding timelines, the purpose of the various hearings, and if they have worked with DHS before.

Ultimately, if the court appoints an attorney for you, you may or may not be able to “choose” who that is. And like any profession, some are better than others, even on the court-appointed list. But don’t assume that your representation will be somehow less if you have a court-appointed attorney rather than private pay, because in fact, the reverse may very well be true.

 

 

Best Practices

I’ve been in court a few times in the last couple of weeks, and wanted to share some more “best practices” for parents.

  1. When the Assistant County Attorney (“ACA”) is speaking, listen. Not talking while others are is, of course, basic courtesy. But it’s particularly important to listen to the ACA, because s/he will likely be telling the court (and you) what they expect. If you are busy whispering to your attorney the whole time, you are going to miss what s/he is telling you. And it will likely result in a stern “suggestion” from the judge that you stop talking and listen.
  2. Focus on what YOU are doing, not what the other parent is (or is not) doing. Juvenile CINA court is not a zero-sum game where one party wins at the expense of another. A real win is when both parents can be sober, healthy, and able to appropriately parent their kids. You likely have a fairly long list of things DHS is asking you to do, and will need to focus all your energy there. That doesn’tmean that if the other parent is endangering the child you ignore it; it just means that you don’t want to constantly harp on what s/he is doing that you don’t like or agree with.
  3. Stop the drama! Seriously—just stop. It doesn’t help you or your case, and it most certainly does not help your child. Drama and lying are the two fastest ways to turn your DHS worker against you, so pleasedon’t do this.
  4. Don’t use your kids to get to the other parent. If your child is old enough to have a cell phone, do not call him or her and say, “Let me talk to your dad/mom.” EVEN IF THE OTHER PARENT HAS BLOCKED YOU. Do not use your kids like this. You will need to co-parent, of course, but in my experience, one parent blocks another when that other parent is harassing them, yelling at them, or constantly fighting with them. If you are civil and reasonable, it is highly unlikely the other parent will block you. If s/he does, talk to your attorney about how you should communicate with that person going forward.
  5. Do NOT ask your kids for money! Do not make them feel guilty about not giving you money or helping you in other ways (providing food, etc.). YOU are the parent. You are supposed to be providing for them, not the other way around. If you try this, your visits will likely go immediately to fully and professionally supervised—possibly even phone calls.
  6. If DHS asks you to do a drug test, DO IT. If you don’t do it, it will automatically count against you as a positive test, even if you are not using. At this point in your life, you do not get to decide when you do and do not submit to a drug screening.
  7. Do not ask for more visits if you are not attending the visits you currently have.There are, of course, times when a visit has to be canceled, though that is usually due to inclement weather, sudden or severe illness, or some other emergency. If you have to miss a visit, let your FSRP worker know as soon as you know—don’t wait until after you have missed the visit (unless that is the soonest you can). If you are not consistently exercising visits, the court is not going to award more.
  8. DO make visits about your kids—not you. Ask them how school went, or soccer practice, or music lessons. Ask them about their friends. Don’t make empty promises, but reassure them that you are trying to do better. Don’t get defensive, and do take responsibility for your mistakes. Tell them you love them, and then show them that by following through on promises and DHS recommendations.
  9. Do not choose the other parent over your child.This can be a hard one, especially if there is domestic violence involved. But you are in a place where you must put the best interests of your child ahead of that of any adult—including yourself
  10. Let kids be kids.Please stop talking to them about adult things, including your substance use, the other parent’s infidelity, your need for bail money, etc. By the same token, don’t ask kids to help you find an apartment, provide food, clothing, or money for you, help you fill out forms (unless they are older and it is, for example, a school form about them), etc. Do not badmouth the other parent to them
  11. Do not criticize your child’s attorney or guardian ad litem to them.We work hard to build up trust with your child so we can advocate for their best interests. When you tell them things that aren’t true, it undermines the relationship, and makes it harder for us to help your child. If you truly think there is a problem, talk to your attorney about it.

Those are the best practices for the day. Let me know if you have others, or if you have questions about any of these.

 

And Another Thing…

While I don’t anticipate making this a series, additional ideas have surfaced in my sometimes-chaotic brain. While it’s true that some of these things may not be “possible” for very good (or more likely not very good) reasons, it is also perhaps true that at least some haven’t been suggested or considered.

Additionally, some of the ideas seem small and inconsequential—why bother? What difference could these small things possibly make?

This is not a political post, but I want to use a recent political “story” to illustrate a point about small things. Congress recently passed tax reform that contained a significant tax cut. There were some politicians who claimed these were “crumbs” and railed against the tax reform generally. Other Americans were thrilled to get those “crumbs,” because it did have a positive impact on their lives. That’s why microloans can make a difference in the lives of individuals in developing countries (or even in developed ones). You see, it’s not money that is the root of all (or even most) evil. It is instead the lack of money that causes problems.

The tax cut, combined with significantly reduced unemployment, helps ease financial problems for people. And when people are working and able to support themselves and their families, a lot of other problems take care of themselves.

I share this because some of the ideas in this blog post may seem small, yet they have the potential to smooth out some of the rough edges of the “system.” They reduce the dependence on DHS, so that cases can move forward even if the worker is, shall we say, not particularly responsive.

Lawyers can sometimes work around DHS, although that increases their workload, by forcing them to do the things DHS should be doing as the social worker. But there are some things that only DHS can do. And that’s where things get monkeyed up.

For example, only DHS can request bus passes for clients. In a case I had, DHS did not do that in a timely fashion. That resulted in the parent missing a family therapy session, a doctor’s appointment (needed to submit with his social security disability claim), and curfew at the shelter where he was staying (which meant he was locked out for the bitterly cold night).

What if, instead, the attorney could also request the bus pas? You could still have safeguards in place to make sure the money is spent appropriately, but this would prevent the kind of cascading problem that lack of transportation can sometimes create. And if multiple people requested the pass, it would still only produce one pass that could be picked up by the client at any bus station.

Another thing that only DHS can request is a family team meeting (“FTM”). Attorneys can, of course, request one from the DHS worker, but then the worker has to make the “referral” to the agency responsible for facilitating the meetings. And then the facilitator has to try to coordinate with everyone via email to set it up.

What if, instead, a request could be made online and could include the entire team? The FTM facilitator could provide a calendar of available dates that people could mark availability (and that would turn “green” on the dates where everyone was available, red for those who are not available, and yellow for those who have not responded) so the facilitator could see at a glance which date/time would work best. Part of the difficulty in scheduling these is that in the interim between when someone responds and the meeting is actually scheduled, other things come up in people’s calendars.

And maybe that technology would alert the facilitator if this particular case has already had a FTM in a particular quarter, so that a request could be sent to the supervisor for permission for another. Perhaps, in order to prevent that from becoming a problem, there could be a reminder sent to the supervisor in five days if s/he hasn’t responded; two days later the request is deemed approved if no response.

Finally, DHS often provides “resources” to parents/families. Unfortunately, what that sometimes means is, for example, if DHS is supposed to “help” them find housing assistance, they might simply provide a list of agencies for the parent to call. What if there was a list of these resources that could be housed in one easy place, with equally easy access? And what if that list became part of a checklist? DHS, attorneys, or other professionals could “check” the lists they need, click “submit,” and the software would print out only the requested lists to be given to their clients (or emailed to them, if the client has access to email)?

Finally, when talking about things the clients haven’t done, I hear, “we need them to be able to do that on their own.” And my response is often, “Yes. But not today.” In other words, at the beginning of a case, a parent is so traumatized and so overwhelmed that s/he cannot hear, process, understand, and do everything they are being asked to do.

What if instead, we implemented an educational philosophy: I do, then we do, then you do? In other words, in the beginning there may be some things that we do for our clients; then we do things with our clients, and then we transition to where they are doing things on their own. We may spend most of the time in that middle category of “we do” together, whether that means actually spending time with them helping them fill out forms, research resources, etc., or instead acting as a resource and sounding board for them as they work through decisions and choices.

What if our “what if” questions motivated us to actually solve problems, rather than idly lament all the problems in the system?

 

Do No Harm

Colin Witt is a juvenile court judge in Polk County. One of the things he reminds the “team” is that not only are we there to do good, we are also there to avoid harm. He doesn’t say this because people set out to harm families. Instead, it’s a reminder that sometimes we are trying so hard to do the right thing that we aren’t aware of the harm we are causing. And it’s not always possible to do both good and avoid harm.

For example, removing children from abusive homes is sometimes necessary to keep them safe, but even when that’s the right decision, it still harms the family; it’s traumatizing for kids and parents to be separated like that. Anyone who practices in juvenile law knows of that tradeoff; are the kids going to suffer more harm by being removed or being left in the home?

Less clear, although perhaps intentionally so, are the things that harm parents in our zeal to protect kids. Some would say that’s acceptable. Parents made “bad choices,” and now are suffering the consequences. What they fail to consider is that those consequences affect the entire family; they are sometimes hardest on those who had absolutely nothing to do with the “choice.” And sometimes we make bad assumptions. We assume kids want to be in a safe stable home away from abusive parents, when the reality is they want their home to be safe and stable; they want to live with their parents.

My philosophy has always been that the best way we help kids is to help their parents get healthy and be good parents. But we sometimes create additional obstacles that can make reunification seem like an insurmountable goal to the very people we are trying to “help.” Much of this has to do with poverty, of course, but many of these families were teetering on the brink of poverty before DHS became involved.

For example, there may be multi-generation families living together. Let’s say mom is using drugs. She “comes to the attention of DHS,” and it is determined that the children must be removed. At that point, DHS tries to find a relative placement to ease that separation for the child. Oftentimes that’s a grandparent. So far, so good. The problem now, though, is that mom lives with this grandparent. So “removing” the child actually means the opposite: the child stays in her home with the grandparent, and mom must “remove” herself.

I’m not saying that’s wrong, per se. But here’s what happens now—mom is likely homeless. That may mean she’s sleeping in a car, or it may mean she is staying with “friends” (who may be the people she uses with), or forced back into a relationship with an abusive partner. Yes, there are “shelters,” but these are often full, with a waiting list. And because she really had no warning that she was going to be homeless, she’s not on the list.

Now that we’ve added “get stable housing” to her list of already challenging things to do (go to therapy, get “clean,” leave your abusive relationship, visit your kids, stay involved…), is it any wonder that parents fail or ultimately give up?So have we helped the kids? Or harmed them? Are we basing decisions on what could happen, or what is likely to happen? If the parent has been using for a year, and only now was “caught,” is there really a risk of “imminent” danger?

I’m not saying DHS and the courts shouldn’t be involved; I’m just not sure removal is the right answer when it compounds the problem.[1]

But let’s say removal is appropriate. What if there was a shelter specifically designed for parents who become homeless as a result of involvement with the juvenile court? What if that shelter was staffed with social workers who could “supervise” visits between parents and children? That could offer some of the services specific to juvenile court parents, and assist with transportation? That could offer parenting classes, budgeting classes, and other things that would help parents trying to get better? Not to mention support groups.

Another, different problem arises when the custodial parent “comes to the attention of DHS,” that involves the noncustodial parent. Let’s say mom is the custodial parent, and the kids are removed due to her substance use disorder (let’s further say her drug of choice is meth). Dad has been paying his child support and seeing his kids every other weekend as ordered. He has a job, stays out of trouble, and minds his own business. But he does use marijuana “socially.” Never when he has the kids, and there is never any “paraphernalia” lying around.

But now DHS wants him to submit to a drug screen. When it comes back positive, they want him to have a substance abuse evaluation and treatment. They want him to have a mental health evaluation, even though there’s no indication he needs it. And so now, we have an otherwise appropriate parent who uses a drug that in some states is legal, but in this state is deemed so illegal that it can result in him not being considered as a safe placement option for his kids.

Again. Are we helping or harming?

What if the custodial parent’s involvement didn’t automatically trigger “involvement” for the other parent? Does their past “good behavior” when parenting their children count for nothing? Should we require DHS to identify specific harm that would be reasonably likely (as opposed to possible) to occur if the child were placed with the noncustodial parent?

The third problem has a pie-in-the-sky solution, but stay with me.

I sometimes have cases where the DHS worker is largely MIA. This is frustrating, of course, but when there is a family crisis, it goes far beyond frustrating. A motion claiming DHS has failed to provide “reasonable efforts” to reunify can be filed but will be unlikely to succeed, in part because of the funding implications.[2] I’ve heard of a judge removing a DHS worker from a particular case, but while this may not have the same monetary consequences, it does create more inconsistency for a family that often desperately needs stability and consistency.

What if, instead, we paired up DHS workers? Let’s say that each caseworker has 50 cases (I know that’s not DHS’ number, but let’s pretend that’s a more accurate number based on a different (and I would argue more accurate) definition of a “case”). What if we instead assigned 60 cases to two (2) workers? Each worker would be lead on 30 cases, but would have access to the files of their secondary caseload. If a worker knew s/he was going to be gone (vacation, FMLA, etc.), s/he could “brief” the back-up worker on the cases most likely to need attention in his/her absence; the back-up would have access to those files if, in fact, attention to that case was needed. And if an unexpected crisis arose and the primary DHS worker assigned to the case was unavailable/nonresponsive, the back-up could assist.

You could even go a step further, and say that each worker’s balance between court involved cases and differential response ones starts at 20/10 (for example – those might not be the right numbers), with a maximum of 25 court-involved cases. If a differential response bumped over to court-involved, giving the lead worker more than 25 court-involved cases, some of those cases could shift over to the back-up in exchange for differential response cases. Again, it should be relatively seamless since both workers are familiar with the others’ cases.

The problems identified are just a few I see in juvenile court. Whether or not these are the right solutions, or are even feasible—I don’t know. What I do know, however, is that no one is really thinking about new solutions. We’re spending our time tweaking old ones. This isn’t really due to people not caring; it’s more about a lack of time to come up with new solutions and then finding the resources (time, money, people) to test and then implement them.

What are your thoughts?

 

[1] Yes, I know about differential response, but that does not involve the courts. At removal and adjudication, we look to whether removal is appropriate at the time of that hearing. It almost always is. So the divide starts to look like differential response (family assessment) is for non-removals, and court-involvement is for removals. Even though one of the “reasonable efforts” questions when the court is involved has to do with what has been done to prevent removal.

[2] Reasonable efforts are those things that are designed to lead to reunification. It’s hard to see how some of the things DHS often includes in its list are designed to “reunify.” To be fair, some of the things attorneys claim should have been provided but weren’t, are things that may be important, but may not necessarily help to reunify the family. The more impoverished the family, the more of these things are on the list.

Guidelines for Testifying in a Juvenile Court Proceeding

As I prepare for a permanency hearing, I thought it might be helpful to include a few of the guidelines I provide my clients. While there may be others (or some that are specific to your case), these are general things that apply in nearly every case.

GENERAL GUIDELINES FOR TESTIFYING

  1. Tell the truth. Do not lie on the stand.
  2. Answer only the question asked; do not offer information or elaborate unless not doing so would create confusion.
  3. If you don’t understand the question, ask to have it rephrased, or say that you don’t understand the question. Lawyers sometimes ask very bad questions, so don’t try to guess at what they are asking you.
  4. Let the lawyer complete his/her question before answering, even if you think you know where they are going with the question. The court reporter cannot take down testimony when multiple people are talking.
  5. Again, for the benefit of the court reporter and a “clean” record, always answer verbally (no head nods or shakes), with yes or no (not “uh-huh” or “unh-uh”).
  6. When you are being cross-examined, leave a brief pause between the question and your answer in case I want to object to the question.
    1. If the judge overrules the objection, you may answer.
    2. If the judge sustains the objection, do not answer.
  7. Do not let the other attorney(s) or witnesses bait you. Remain calm.
  8. Try not to fidget on the stand.
  9. Do not use profanity unless you are quoting someone who used it. Be respectful on the stand. Do not try to make the other parent look bad while you are on the stand.
  10. Remain on the stand until the judge tells you that you may step down.

 

Build Your Team

Yesterday was Thanksgiving in the U.S., and I saw a post by a dad I know who was grateful for his daughter; she gave him purpose and helped him through the bad times. This is a DHS/Court-involved family, where a substance use disorder was the reason for removal. While I understand his gratitude for his daughter and his belief that she is the reason he’s been able to get through challenges (and don’t doubt that that is a part of his successful recovery), there is another piece he’s overlooking.

His support team.

Supportive parents, siblings, and extended family. Encouraging friends and colleagues all make a difference.

I have another family that is struggling, and, if things go the way they have been, will likely have parental rights terminated. These parents have almost no family to support them, either because they don’t exist, or because these parents have burned those relationship bridges beyond repair. When asked about supportive friends, they could think of no one. Neither is employed (dad is disabled, and mom’s substance use and choice of violent partners keeps her unemployed), so there is no support there.

The services they have been offered go by the wayside, whether because of transportation issues, narrowed emotional and cognitive “bandwidth” due to everything else that’s going on, or the addiction itself.

And so they struggle to do everything alone.

And fail.

Yes, they have attorneys and DHS workers and FSRP workers. But those are not the people they can count on every day. And they won’t be there when the case closes, because it’s a professional relationship, not a personal one. So while those individuals are important to helping them reunify with their children, the professionals are not the most important long-term relationships the parents will need to rely on.

Traditionally, many people relied on their family, community, and church to help them through tough times. But we have become a society whose very mobility (and reliance upon faceless technology) makes those relationships difficult. We move away from our families, we don’t stay in any one community long enough to build lasting relationships, and many no longer have a church home, deeming it “irrelevant” and “unnecessary.” Some believe they are somehow not “good enough” to go to church, but churches are not for “perfect people.” Churches are for everyone who realizes that we need people in our lives we can count on to carry us through challenging times.

But people can build relationships within community as well. There are always plenty of opportunities to volunteer, no matter who you are, and giving back helps boost a sense of being needed — of doing things that matter. And shared mission creates an immediate connection that can be built upon to create friendships and connection.

Both quantity and quality of relationships matter. The stronger that network of support, the less likely you are to fall, or to fall as far. And no matter what you’re dealing with — whether big, serious issues like domestic violence, poverty, or substance use, or smaller, everyday aggravations — having people in your life to listen and offer support makes a big difference.

But you can’t just sit back and wait for those people to show up. You have to actively seek, build and cultivate those relationships. You have to reciprocate when they are struggling. And you have to be grateful for the people who are there for you — the ones who love you unconditionally, and the ones who always tell you the truth, even when it’s hard to hear.

Your “why” matters—but no more or less so than your “who.”

What Should I Expect at Court?

Dear Parents in Juvenile CINA (Child in Need of Assistance) cases:

Here are some things you might like to know before heading into court.

  1. Iowa practices a “one family, one judge” That means that barring any unforeseen circumstances, your hearings will be in the same courtroom, with the same judge every time.
  2. Parking can be a challenge downtown, so plan to arrive early. The on street, metered parking near the courthouse has a two-hour limit. The Hy-Vee parking ramp is free for the first two hours and $3.00 for every hour after that. Ramps tend to be around $1/hour. You will not be able to go “feed the meter” during a hearing, so ask your attorney how long the hearing will be so you can plan appropriately. Click here for parking ramp locations, and here if you are interested in a Smart Card parking card. The advantage to the card is that you can put the maximum time into the meter, and then “reload” whatever time is left back on to your card.
  3. Children can attend their hearings; in some cases, the judge may require you to bring them. If they attend, you may want to have another adult there who can take the child out if the judge asks you to do that (if, for example, the judge wants to hear information that s/he does not believe would be appropriate for the child to hear). Let me know if you plan to bring the kids.
  4. You will sit at counsel table with me. There are microphones at counsel table that are fairly sensitive, however, so if you need to speak to me privately, you may want to turn away from the microphone and speak quietly.
  5. If you are incarcerated, you may still be allowed to attend the hearing in person or by telephone. If you attend in person, you will be accompanied by law enforcement, who will remain in the courtroom. You may be allowed to meet me prior to the hearing in a secure room. You will be allowed to sit at counsel table with me.
  6. Juvenile court is a bit more informal than other courts. The judge may ask you some questions. One of the questions s/he may ask is if there are any other services you need to be successful. These may be financial, or services such as therapy, or even things like bus tokens to get to various appointments. You can also talk to me about what you need.
  7. Wear your “poker face.” Do not allow anyone to provoke you in the courtroom, do not “get into it” with the other parent (or anyone else), and do not give people the “stink eye” in court. The judge will see all this, and will not like it. In other words, be civil and polite, in order to give the judge the best impression of you possible.
  8. As your attorney, I am your advocate; if you’re having trouble with something, or are having trouble getting hold of DHS, contact me and let me know. Yes, I represent you in court, but I can do that much more effectively if I know what is going on beyond the courtroom.
  9. If you fail a drug test, quit going to therapy, or fail to do something else the court or DHS has asked you to do, tell me when it happens (please don’t wait until your hearing!). Except for very limited circumstances, I cannot reveal to anyone what you tell me because of attorney/client privilege (though these things will likely come out anyway), but I can help you get back on track faster.
  10. You don’t have to be perfect. But you do have to substantially comply with what you are being asked to do.

Other questions? You can email me, contact me through your MyCase portal, or talk to me when we meet before your hearing. Write down your questions as they come up so you don’t forget; don’t ever feel like any question is too silly to ask. It’s important that you be as well-informed as possible throughout the process—it’s your case, after all, and I want the best outcome possible for you.

Custody vs. Physical Care

Recently, I’ve seen a spate of men wanting to change “custody.” Although I’m not sure why this is, there are a few things that are important to know.

First, the term “custody” itself can be confusing. “Legal custody” is typically joint, and has to do with the rights parents have to their children’s records—medical, educational, criminal, etc. Legal custody gives them rights to participate in decisions regarding these same areas, as well as other things like extra-curricular activities, religious upbringing, and so forth.

Physical care, on the other hand, has more to do with where the child will live. “Primary physical care” is when the child lives with one parent most of the time; the other parent has visitation (and it may be significant visitation). “Joint physical care” is when the kids spend roughly equal time with each parent. That may mean that the kids are bouncing back from house to house, or it could mean that the children stay in the family home and the parents come in and out.

Obviously, joint physical care requires a significant amount of cooperation on the part of the parents, and an ability to get along and put their children’s needs above their own. This is not always possible, of course.

Modification typically takes one of two forms (in relation to physical care). If there is primary physical care, a modification can request that the court change physical care from one parent to the other. If the original decree awards the parents joint physical care, either parent may seek a modification to primary physical care.

Regardless of which type of modification is involved, the basic requirement is that there has been a substantial change in circumstances not contemplated by the court at the time of the original decree or order. If the modification is from joint physical care to primary physical care, the fact that the cooperation and arrangement hasn’t “evolved” as anticipated (in other words, the trial court thought the parents would be able to “get along,” but that has not proven true) may be grounds for modification.

Keep in mind, too, that the court’s primary concern is the best interests of the children—not the parents, necessarily. The court will look at how disruptive a change in physical care might be, for example (which means generally that the longer a child has resided with one parent, the harder it will be to persuade the court that a move is in his/her best interest). The court will look at not just the change in the home, but whether it will affect schooling, nearness to friends and family, a new city or state, and so forth.

That does not mean that a move on the part of the custodial parent will automatically justify a modification. Courts have been reluctant to prevent parents from moving when there are good reasons for the move (e.g., economic, the need to care for aging parents, moving with a spouse who has changed jobs, etc.). But it may be a factor.

The other thing I always tell parents is to take the high road. I don’t care what the other parent is doing—I want my client doing the right thing. Following are some of the specific ways to do that:

  • Don’t fight with your ex, especially in the presence of your children.
  • Don’t “badmouth” your ex to your children.
  • To the extent possible, cooperate with your co-parent. Even in situations where it is not possible, be respectful and civil.
  • Always keep in mind what is best for your child(ren), and behave accordingly.
  • Don’t be unreasonable.
  • Don’t do things with the sole intention of hurting your ex, or making things difficult just to make them difficult.

You do not have to be a “doormat,” of course, but the court will hear evidence of each parent’s behavior and interactions with the other. It will always work in your favor to be the parent who is trying to do the right thing. There are court opinions awarding physical care to the parent who demonstrates the greatest ability to work with the other. So yes—it’s important.

There are, certainly, times where modification is appropriate. But make sure you are doing it for the right reasons; in other words, when it is in your child’s best interest.

 

Hearings

Some of the questions a lot of people have are about the hearings. Although your case may be different, here is some general information about Child in Need of Assistance (“CINA”) case hearings. The hearings are listed in order, and also tell you the purpose of the hearing, and what might happen at each hearing. If your case is different, feel free to ask your attorney to explain your situation to you.

At the end of each hearing, you should receive an order setting the date for the next hearing. You may also receive an order regarding the court’s findings and decision, though if it is a bit more complex, that may be filed later.

 

Removal Hearing

This is the very first hearing that takes place, and it occurs within ten (10) days of your child’s removal from your care. The purpose is to determine whether, at the time of the hearing, the child can be safely returned home. It is not to determine whether the removal was “right” in the first place.

Side note—At the time of removal, DHS may ask you whether you will test positive if you do a drug screen. Do not lie to them, or hope that it will come back negative. If they’re asking about drug usage, that may mean they are concerned about the possibility that you might be using. And if they’re concerned, they will almost always require you to take a drug test. If it comes back positive after you tell them it will be negative, your credibility will be damaged, which will hurt you going forward.

 

Adjudication

The Adjudication Hearing takes place within sixty (60) days of the removal hearing. This hearing is when the court determines whether your child is in need of its assistance, based on the evidence presented. If the court finds that you have abused or neglected your child, or if the judge finds you are using, making, or selling drugs illegally, it is likely the court will find that your child is in need of its assistance.

If the court finds that your child does need its assistance, the court can make one of the following decisions regarding where your child will go at this time:

  • If your child was not removed, but is found to need the court’s assistance, s/he may be permitted to remain in your home.
  • If the child was removed, the court could return the child to your home, but may still order services.
  • Your child may go to the home of a relative, or
  • Your child could go to foster care (or in rare cases, to a facility/group home).

 

Dispositional Hearing

This hearing is held within sixty (60) days of the Adjudication hearing, but will sometimes be held at the same time as the Adjudication Hearing. The court will determine placement, custody, supervision, and services.

Talk to your attorney before the hearing to discuss what services you might need to help you reunify with your children. These might include (but aren’t limited to) substance abuse treatment, therapy (for you and/or your children); bus passes (if transportation is an issue), housing assistance, etc. If you’re not sure what services you need, start by thinking about what’s getting in the way of your success in reunification. For example, if you are at risk for being homeless, ask for housing assistance. If you are having trouble maintaining employment because you don’t have reliable transportation, bus passes might be an option. Although DHS will off various services (or in some cases, require them), it’s up to you to ask DHS and the court for the services you need that they may not have offered.

 

Review Hearing

Approximately six (6) months after the Dispositional Hearing, there will be a review hearing. At this hearing, the judge will check in to see how you are doing. This might be a good time to talk about visitation.

There are three (3) types of visitation: supervised, semi-supervised, and unsupervised. If you start at supervised visitation (which is common), then the goal is to gradually increase visitation and move to semi-supervised visitation, and then to unsupervised visitation. There will almost always need to be at least some unsupervised visitation prior to reunification.

 Supervised Visitation is often done by the FSRP worker, but may also be done by a relative.

Semi-Supervised Visitation acts like a “bridge” between supervised and unsupervised visitation. The FSRP worker might not be at the whole visitation, but may drop in and out. Or some types of visitation (e.g., in a public place, for short periods of time) might be unsupervised, but longer visits in the home might be supervised.

Unsupervised Visitation is where you want to be leading up to the permanency hearing if possible. That’s not always possible, and it doesn’t mean you won’t be able to reunify.

If the visitation is going well, you can always ask DHS to increase your visitation or move to semi-supervised. Talk to your FSRP worker as well, because s/he may see you more often than DHS, so his/her opinion about when you can increase visitation will carry weight. If there have been problems, either with visitation or, say, a relapse, that might not be the best time to ask for more visitation or semi-supervised visitation. If you’re not sure, ask your attorney.

If you ask DHS and are told no, ask (politely) for the reason(s) and then visit with your attorney about it. If there is a hearing coming up, your attorney can ask the judge to grant more (or different) visitation, even if DHS doesn’t agree. If you can demonstrate to the judge that you’ve earned it, s/he will sometimes grant your request even if DHS disagrees.

But remember—don’t ask for more visitation or semi-supervised or unsupervised visitation just because you want it. You have to demonstrate to DHS and/or the court that you have earned it by having a good track record of recent visitation without any other issues (such as relapse, for example).

 

Permanency Hearing

At the permanency hearing, the court could do one of four (4) things:

  • Return your child to your care/custody (with or without closing the case)
  • Grant an extension so that you have more time to demonstrate that you’re ready to reunify. This sometimes happens if you’ve been doing well overall, but maybe had a “hiccup” —maybe you relapsed or are having issues with housing, for example.
  • Don’t terminate, but set up some other permanent arrangement, such as a guardianship.
  • Termination of Parental Rights – this is the outcome you do not This would end your legal relationship with, and rights to your child. The court could direct the county attorney or guardian ad litem to file this petition, or, if it has already been filed, the judge could rule on it at this hearing.

 

Termination of Parental Rights

This petition is considered to be a separate case with separate case numbers, but all of the evidence from the CINA comes forward into the TPR case. Although you would have the right to appeal a TPR if you lost, the odds of getting that decision reversed on appeal are not good, so it’s important to prevent that from happening if possible.

Most cases reunify, which should encourage you. But not all of them. You can dramatically increase your chances of reunification if you do what the courts and DHS are asking you to do on a consistent basis. If there is something that you truly believe is an unreasonable request, talk to your attorney about it and let him or her raise that issue.

There are a few other hearings that sometimes occur, such as a modification hearing (if something happens that necessitates modifying placement or visitation, for example), or a permanency review hearing. But the ones listed above are the most common ones.

As always, if you have general questions, feel free to email me. If they are specific to your case, call your lawyer. They are there to represent you, so don’t hesitate to ask them to help you.

How to Work with DHS Towards a Positive Outcome

As most people know, DHS has been in the news a lot lately—and not for good reasons. Following the starvation deaths of Natalie Finn last fall and Sabrina Ray more recently, Iowans—and their representatives—have been outraged (against the parents, DHS, and pretty much everyone involved; unfortunately, they don’t always have their facts right). While the death of these girls is horrific, of course, it is important to know the facts and how they might (or might not) apply in your case.

First, both girls had been adopted out of foster care. Once a child is adopted, there is no oversight by DHS, the courts, or anyone else. In the eyes of the law, those parents have the same legal rights (including the right not to have the government looking over their shoulders) as biological parents. That lack of oversight is not true when a child is in foster care, either during a CINA case or pre-adoption. If your child has been removed and placed in foster care, there is pretty significant oversight. DHS, FSRP, and (if one is appointed) CASA are doing regular visits, as is the guardian ad litem. The court is involved, there may be family team meetings, and in most cases, the biological parents (you) have visitation. And remember—the child can only be adopted if your parental rights are terminated. If you do what the courts and DHS are asking you to do, it is highly unlikely anyone would be suggesting termination.

Second, while politicians do care about what happens to kids, they also often have their own agenda—reelection. This means that things sometimes get exaggerated, often to catch the media’s attention. Again, that doesn’t mean they don’t care about your kids—it just means they have a parallel motive. But just because they are publicly calling for resignations and criticizing DHS in very strong terms doesn’t mean you should be fighting with your DHS worker. Keep in mind that the politicians are criticizing the organization; if they criticize individuals, they are criticizing those in positions of power and authority with DHS—not, by and large, individual workers, which is who you will have contact with.

Third, although you have the greatest control over the outcome of your case, DHS obviously plays a significant role. You are in control of complying with what DHS and the Court ask you to do, but it is DHS who makes recommendations (that may or may not be approved by the court) as to what those services will be. They also recommend, based upon your actions, whether to reunify your family or terminate parental rights. Knowing that, it makes more sense to work with DHS than fight with them.

So here are 10 tips for successfully working with your DHS worker:

  1. Do your very best to comply with what they are asking you to do. If they “recommend” that you go to therapy, go to therapy. Exercise visitation (without creating problems at the visitation). Don’t use drugs. Don’t violate no-contact orders (in cases with domestic violence). If you think DHS is making an unreasonable request, talk to your attorney. If your attorney agrees with you, she can raise that issue. But in most cases, you will be required to follow the case plan.
  2. Make sure your DHS worker (and everyone else on your team, including your lawyer) has your current contact information. If you move or change your phone number, let them know. It’s very important that they be able to contact you.
  3. Attend all hearings and family team meetings. Put them on the calendar, on a big piece of paper stuck to the refrigerator, or ask your attorney. Don’t guess, and don’t skip it. If a conflict arises, contact your attorney right away and ask her to help you resolve the issue.
  4. If your DHS worker is recommending (or suggesting without saying it outright) that you do something that contradicts what your attorney or a medical professional advises, talk to your attorney immediately about that. For example, I’ve heard reports recently that DHS is leading parents to believe that they will not recommend reunification if the parent is taking methadone or Suboxone. Their doctors, however, are stating that they need to be taking it for at least a year in order for it to work. While there may be reasons for doing that, it puts you (the parent) in a difficult position. Sometimes parents try to stop the methadone or Suboxone and end up relapsing—and this can be very dangerous. Clearly, that’s not good. Talk to your attorney if you find yourself in this position, and never simply stop taking your medication without talking to your doctor first. There is a lot of misinformation out there about MAT (Medication Assisted Treatment), so it’s important to get your attorney involved so you can stay on your doctor’s plan without repercussions.
  5. DHS workers often have very heavy caseloads. This means that they cannot always get back to you right away. If it’s urgent, call your lawyer, and tell him what the problem or question is and that you have tried to call DHS, but haven’t heard back. Your attorney is there to advocate for you, so don’t hesitate to call him when necessary. That doesn’t mean call him for every little thing, but it does mean that it’s better to call than to simply not comply.
  6. Don’t verbally (or physically, of course) abuse your worker. Saying things to them like, “my child is going to be starved or abused in foster care” (at removal, for example) will not help you. Remember—while the CINA case is going on, there will be significant oversight and DHS/FSRP/ CASA/Court contact with your child. Being respectful and civil goes a long ways towards a good working relationship with your DHS worker.
  7. Related to that—if you know of relatives who might be suitable placements for your child(ren), share that with DHS. A non-custodial parent, grandparents, aunts/uncles, and even, on occasion, adult siblings might be a good choice. And if there are no relatives, there may be an adult with whom the child has a good relationship that would be suitable. This might be a coach, Big Brother/ Big Sister volunteer, or someone from church. Not everyone will be able or willing to do this, and DHS may or may not approve them, but it doesn’t hurt to make the suggestion.
  8. Treat your worker with respect. I understand that you are or may be afraid, angry, or feeling many other “high emotions,” but giving (loud) voice to those emotions does not usually help you. Keep your focus on what is best for the kids. If you have an attorney (which you may not have at the time of removal, which is also the time when emotions are running highest), let her fight those battles.
  9. If you are asked to do a drug test, DHS may require you to test even if you tell them it will be “dirty.” There’s really no point in arguing with them about it—just do the test. If there’s a scheduling problem, talk to them about that, but it’s generally not a good idea to flat out refuse. Sometimes DHS will require you to do a drug test because they need to know what you are taking. For example, some parents will say they will test positive for marijuana (which may or may not be true), but they will actually test for something much more problematic, like heroin or cocaine.
  10. Be honest. If DHS asks whether a drug test will be positive, don’t say you’re clean if you know you’re not. This just harms your credibility when the drug test comes back positive. Don’t say you’re clean in the hopes that the drug you took won’t show up. It probably will. In the case of relapse, it’s better to admit it and then go on to emphasize what you have done to make sure that doesn’t happen again. Whether it’s about substances or something else, the truth will usually come out; if you have been less than honest, that will only hurt you.

DHS workers are not bad people whose goal is to take your kids away from you. They are people who became social workers in order to help people. They care about your kids and want what is best for them. They also want you to succeed, because reunification is usually (though not always) best for everyone involved. Like any profession, some workers are better than others. But I have yet to meet a worker who doesn’t want what is best for your kids (even if I disagree with her assessment of what that means).

But DHS workers also have heavy caseloads and a lot of paperwork. They don’t have much control over either of those things, so they do the best they can. I’m not saying that’s ok—I’m saying that’s the reality right now. There are people (including politicians) who are working very hard to make changes that will have a positive impact, but this will not happen overnight. Your case might be over before they make any changes. But if you follow the tips above, your experience with DHS will be much more positive, and you will be more likely to have a good outcome.

And isn’t that the goal?