Chapter 10 Representing Parents at Disposition and Permanency Hearings

• Library: Representing Parents in Child Welfare Cases: Advice and Guidance for Family Defenders (ABA) (2015 Ed.)

CHAPTER 10 Representing Parents at Disposition and Permanency Hearings

Richard Cozzola and Lee Shevell

10.01 Introduction

In most jurisdictions, the adjudication that a child has been abused or neglected occurs in the first six months of the case. But the series of disposition and permanency hearings that follow the adjudication hearing can stretch on for years, continuing until a child is returned home, a court terminates the rights of the parents or awards guardianship to a relative, or until the child ages out of the foster care system. Although these hearings often employ relaxed evidentiary standards and use written reports instead of direct testimony from professionals, they are the hearings where a court makes many of the major decisions about the ultimate direction of a case. These decisions include: what services parents must complete to regain custody of their children, whether the services an Agency is offering are reasonable, whether a parent is making progress to regaining custody, and whether an Agency should discontinue providing services to a parent in favor of terminating the child and parent relationship.

The post-adjudication stage of the case has two unique features. The first is the parent's ability, through her conduct, to develop the evidence for the case that the court will hear. The second is the lawyer's use of advocacy skills to gather facts, work with social workers and other professionals involved with the family, and advocate a theory of the case that assists the client.

10.01(a) Theory of the Case

To be an effective advocate a lawyer must develop a theory for why her client should prevail. Experts in advocacy call this the "theory of the case." The theory of the case is the lawyer's integration of the client's story with the relevant legal issues. It combines the law and facts in a way that leads to the conclusion that the counsel's client should win. See Steven Lubet, Modern Trial Advocacy 8 (2004). For example, in a criminal case, a defense theory might be, "The state's witnesses are inconsistent about time, place and person. Because the facts don't add up, you cannot find the defendant guilty beyond a reasonable doubt."

The parent's theory in a child protection case is an evolving theory because the legal issues and facts might change from hearing to hearing. The legal issues at adjudication focus on the past events, whereas the disposition, review, and permanency planning hearings occur after a court has already determined that the parent was responsible for the abuse or neglect of a child. A theory at adjudication in an excessive corporal punishment case might be a choice between two options: (1) that no corporal punishment occurred or (2) that corporal punishment occurred but a question exists about its severity and whether it rises to the legal standard for child abuse. However, when the trial court finds that the corporal punishment occurred and constitutes abuse, the theory must evolve at the disposition hearing. Given the court's finding, the theory must focus on whether the parent can care for the child now, having learned better ways to manage behavior, and whether the child's best interests support returning the child home to the parent's care.

Additionally, because the lives of parents and their children are not static, the facts on the ground can change. The parent who used a ruler to hit a child may learn new methods of child discipline. When that kind of change in the client's life occurs, the theory will likely change at disposition. The client's story (and her lawyer's theory) now becomes the story of the parent who made a mistake, hurt her child, but has now taken positive steps toward becoming a better parent.

While disposition and permanency hearings usually involve different issues, they all focus on the parent's progress and the best interests, safety, and well-being of the child. Thus, it is critical that the parent's attorney develops a theory that her client has been focusing on those issues. The overall goal of a parent's attorney at these hearings is to use facts to help develop a persuasive theory, and then employ advocacy skills to advance that theory both in and out of court.

10.01(b) Outline for the Chapter

To demonstrate how an attorney can create a workable case theory at this juncture of the case, this chapter begins with an overview of disposition and permanency hearings, but assumes that the reader knows her state's law regarding these hearings. The chapter then discusses fact gathering. Fact gathering is both a legal necessity and a process that enables the lawyer to develop a theory of the case. Fact gathering begins with the client, moves on to family members and significant others, and concludes with the caseworker and other professionals. The chapter looks at interactions with professionals at child and family meetings, as well as other informal advocacy settings. Finally, the chapter examines work in the courtroom itself.

One word of caution before moving to these issues: Although the outline of this chapter seems to present the lawyer's work as linear—first gather facts, then advocate— these activities are often simultaneous and interrelated. Parents' lawyers advocate out of court and in court to get clients the services they need, to increase visitation, and to motivate clients to try to achieve their goals. Fact gathering never ends. Parents' lawyers learn new information about their cases constantly, in the hallway outside of a courtroom and in the courtroom itself as a hearing occurs. Each court appearance provides the opportunity to fine-tune the case theory and adjust how the lawyer presents it to the court based on new facts. Remember, throughout the process the goal for representation remains the same—to use the ever-evolving theory of the case to help the client achieve her goals—whether that goal is return home, permanent placement with a relative, adoption by a non-relative, residential placement for a child with profound disabilities, or any other goal achievable under the law.

10.02 The Legal Elements and Issues at Disposition and Permanency Planning Hearings

10.02(a) Disposition Hearings

Although the exact terminology of disposition hearings varies from state to state, the process courts follow and the issues they decide are similar. The initial disposition hearing usually takes place shortly after the adjudication. By the time of the initial disposition hearing, the adjudication finding has given the court the jurisdictional authority to make orders at disposition about who should have custody of the child and the services the child and family should receive.

At disposition, the court must first decide whether the child will live in the custody of the parents, relatives, or in non-kinship foster care while the case is ongoing. In many states, the critical inquiry whether to permit the child to live with his parent is based on the ability of the parent to care for the child safely. If the court decides the child cannot live in the custody of one or both of the parents, it must then decide who will be the child's custodian or guardian. The options are usually placement with a relative, placement with a foster parent, placement in a group setting, or placement with an Agency or "state guardian" with the authority to decide where to place the child.

At the disposition hearing, the court will also order the parent to comply with the case service plan which details the services that must be completed to effectuate reunification. Typically, the Agency will draft the case service plan and present it to the court. The court will decide whether to adopt the document in its entirety, or amend it based on the information provided by the parties.

Some states also use the term "disposition hearing" to refer to situations after the initial disposition hearing, when the court considers whether to return a child home at a later date. At such times the court usually considers the same issues as at the initial one, whether the parent is able to care for the child safely and whether the child's best interests are consistent with a return home. In this chapter the term "disposition hearing" will refer to the initial disposition hearing.

10.02(b) Permanency Hearings

Unlike disposition hearings, which have been a component of juvenile court hearings since the inception of the juvenile court, permanency hearings were added to these proceedings by federal legislation designed to encourage courts to place children into "permanent" homes expeditiously. To do this, the federal government requires, as a condition of federal money for foster care, that states conduct a permanency hearing no later than twelve months from the date the child enters foster care and then at least once a year thereafter. See 45 C.F.R. § 1356.21(b)(2) (2012).

At these hearings, federal regulations require courts to determine the long-term goal for the child's placement, the services to achieve that goal, and the progress made since the last court review. Goals range from returning the child home to terminating parental rights so that children may be adopted. Other permanency options include legal guardianship or permanent placement with a relative. If none of these options is appropriate, the court must seek a different permanent living arrangement, such as independent living for an older adolescent. All of these decisions are to be based on the child's safety, health, and well-being. See 42 U.S.C. §§ 621, 672(a)(2)(ii) (2014).

At the annual review hearings required by federal law, states are supposed to determine whether the Agency is making reasonable efforts to achieve the permanency goal and whether the child's placement is safe and consistent with the goal. See 45 C.F.R. § 1356.21(b)(2). Federal regulations allow these review hearings to be conducted by courts or administrative agencies. Because of the similar issues in review and permanency hearings, this chapter...