* Steve Balaban
Judge Bruce Romanick
Judge Cynthia Rothe-Seeger
* = Expanded membership for purposes of discussing the Uniform Juvenile Court Act.
** = Staff
Michelle Kommer, UND School of Law student
Judge Kleven called the meeting to order, and conducted introductions.
1st Agenda Item: Best Practice Manual:
Karen Kringlie reviewed the purpose of the Juvenile Court Officer Best Practice Manual, saying that it would be a manual of best practices to guide new employees in the juvenile court system as well as others. She explained that the Manual had been reviewed and approved by the committee of juvenile court officers that was tasked with preparing it. Judge Kleven asked for comments. Judge Kleven said the Manual would also be helpful for State’s Attorneys in rural counties. Louis Hentzen agreed. Gary Delorme said the Manual was helpful with identifying proper terminology. Judge Kleven said she felt that aspect was also helpful for judges. Al Lick agreed that it is a good start.
2nd Agenda Item: Interstate Compact Issues
Ms. Kringlie spoke to Pam Hovland who provided a memo that Ken Sorenson had written several years ago on the topic of Interstate Compact (IC/PC). Ms. Kringlie indicated that Ms. Hovland said IC/PC is covered in Chapter 12 of North Dakota Century Code, and needn’t be included in Chapter 27 as well. Mr. Sorenson said the new compact has not been accepted by enough states, and includes no substantive information. He indicated that it is planned that an IC/PC Administrative Code will be adopted to contain the necessary substantive information. Mr. Sorenson said he doesn’t know when that will be completed, but as each state approves it, there will be a coordinator in each state. Mr. Lick said there is presently a committee of seven members in North Dakota tasked with that process. He indicated that as of January, there were ¾ of the necessary states that have ratified the new compact, and by summer, the necessary number of states would have approved. Judge Kleven asked how that impacts N.D.C.C. § 27-20-39 through 27-20-43? Mr. Sorenson said he thought these would need to be amended when the new Compact was ratified in all states, although he does not anticipate a lot of change in the way it works. Ms. Kringlie said she didn’t think there were any changes needed in the code now. Judge Kleven asked if N.D.C.C. § 27-20-39 through 27-20-43 is being used by anyone? Ms. Kringlie and Mr. Sorenson agreed that these provisions are presently being used, but they will need to be adjusted later when the changes are ratified. Ms. Kringlie said that it would be premature to make any changes at this point, however. Judge Kleven then closed the conversation relative to N.D.C.C. § 27-20-39 through 27-20-43.
Tara Muhlhauser wanted noted in the minutes that the IC/PC contact had no problems with the re-drafts to date, and suggested that there would be significant changes requested in the 2009 legislative session to coincide with the new regulations, but states are being given generous time for redraft. Ms. Muhlhauser’s understanding is that 35 states are not presently complying with the federal regulation. The IC/PC contact said there is a lot of work to be done, and it is very cumbersome. Ms. Muhlhauser added that the number of IC/PC issues will only increase as children continue to be placed with relatives who are many times out of the state.
3rd Agenda Item: N.D.C.C. § 27-20-44 - Expedited TPR
The group discussed the proposal that was introduced during the last meeting. Before leaving the meeting, Mr. Freed voiced his opinion that the law is adequate in its present form. Justice Mary Maring indicated her reluctance to single out meth as a factor in the expedited termination of parental rights, because meth treatment is new, and there may be constitutional issues. Connie Cleveland said the flipside is that, even in the best situation, meth recovery treatment isn’t quick enough to reunite the parent and child in a safe environment, in an acceptable timeframe. Ms. Cleveland added that in her experience, the kids that go back to meth homes not only come back into foster care, but return damaged. She indicated that she supported the expedited termination of parental rights with meth users. Justice Maring asked if the children of alcoholics would be treated the same? Ms. Cleveland stated that she believed that N.D.C.C. § 27-20-44 should at a minimum be reorganized according to the suggested changes, and endorsed addressing meth specifically within the revised code. Ms. Muhlhauser said she would want a multi-disciplinary group to review the code before moving ahead with the meth language, specifically. She also suggested that such language would create more terminations, increasing costs. Ms. Cleveland said she didn’t think the proposed change would change the financial situation regarding terminations, because the terminations are occurring already – with the change, they would just occur earlier. Justice Maring added that she had recently attended a meth conference in Santa Fe, New Mexico, where one of the judges/attendees suggested mandatory sterilization for meth users (Justice Maring was not endorsing this suggestion). Judge Kleven added that there is a program in Grand Forks that permits mothers/children to treat together, but the program is indicating that they are not succeeding at treating meth parents because they can’t beat the addiction. Judge Kleven suggested that the group endorse the change without the meth reference. Justice Maring said she has seen minority reports that could include this meth issue. Ms. Muhlhauser agreed that this would be a good idea. Ms. Cleveland said it is important to involve the treatment professionals because their prognoses are inconsistent, and indicated her support in continuing discussion on including specific reference to meth because it is an important issue, a significant situation in the state, and the interests of the children warrant it. Ms. Cleveland stated that she doesn’t think there should be a concern about an increase of number of terminations, and endorsed the idea of a Minority Report on this issue. Ms. Muhlhauser asked if there was data to review, and Ms. Cleveland said this has only been recently collected. Judge Kleven asked who would have that information? Ms. Muhlhauser suggested that it could probably be obtained county by county. Ms. Kringlie asked if the social workers have started to collect this data yet? Ms. Cleveland answered that Cass County is coding cases specific to meth. Ms. Muhlhauser said she didn’t think there was a system-wide meth-specific code. Judge Kleven asked how we want to proceed with this? Ms. Kringlie suggested that the code should be reorganized so that all the information is contained in one place. Mr. Delorme agreed, stating that if it is not all contained in one section of the code, every person using it has to fully research the entire code each time it is used. Mr. Delorme said that in addition to reorganizing the code, social services could benefit from training, because workers seem to be going twice as far as they need to, by wanting to impress the judge with aggravated circumstances, but consequently missing the window to terminate, dragging the issue on for several hearings. Mr. Delorme said he also is concerned with meth-specific language because of a perceived income barrier – the user with the well-off parents gets better addiction treatment, resulting in constitutional issues. Ms. Cleveland added that you also end up creating a third category – Indian meth users, where ASFA doesn’t apply because of ICWA. Ms. Muhlhauser said a glimpse of the future is that according to the Associated Press, meth use is indeed rising on Indian Reservations. In conclusion, the group agreed to accept the proposed statute with the exception of the meth-specific language in proposed N.D.C.C. § 27-20-44.1.(b)(6).
4th Agenda Item: ICWA Active Efforts
Ms. Muhlhauser attended an ICWA Conference in North Dakota since the last Committee Meeting. She noted that the information she received was that “active efforts” required by ICWA means that child welfare agencies need to make more than “reasonable efforts” (required by ASFA) to reunify the parent and the child. She likened “active efforts” to “reasonable efforts plus”. She indicated that the sense around the state, anecdotally, is that the juvenile courts in Bismarck are asking consistently whether active efforts are being pursued. Ms. Muhlhauser and Mr. Hentzen are discussing this matter on the court improvement committee as well. Ms. Muhlhauser added that the Department of Children and Family Services is defining active efforts in the social workers policy. Also, through the Court Improvement Taskforce, Ms. Muhlhauser and Mr. Hentzen are asking that court officers query social workers on their progress toward active efforts, and that this topic is discussed in November training for judges and referees. Ms. Muhlhauser noted that there has been some good work in Bismarck defining local ICWA compliance. Her sense in talking to ICWA experts around the country is that definitions are localized. At times, these are defined in each state’s Juvenile Court code, and other times in social workers handbooks or through other localized efforts. Mr. Hentzen spoke with one of the speakers at the ICWA conference who agreed that active efforts are subjective to the judge. Mr. Hentzen agreed that judicial officers must be responsible for maintaining accountability for active efforts. Ms. Muhlhauser said that the Department of Children and Family Services is requiring social workers to address active efforts whether the judge asks you about it or not. Mr. Delorme said that one of the problems in the rural areas is even getting past the first step – whether the child is Indian or not – to know if the child even qualifies under ICWA. He noted that it is difficult to get an idea one way or the other, and then to decide how to proceed if an answer cannot be obtained in a timely manner. Ms. Muhlhauser responded that her answer is that “culturally competent services are always best practice”. Mr. Delorme indicated that a steadfast rule would be helpful to avoid getting a TPR appealed for lack of active efforts. Mr. Thompson responded that the child should always be treated as an Indian if the child’s status is unknown.
Michelle Kommer reviewed her research regarding active efforts, which was provided to the Committee via e-mail in advance of the meeting. Research within the Eighth Circuit revealed that there is no uniformity in the manner in which “active efforts” are addressed statutorily. Ms. Muhlhauser added that there is presently concern about the federal law, and a movement to reenergize it (ICWA). Mr. Hentzen said that he recalled that Judge Christofferson had specific concerns about ICWA definitions. Ms. Muhlhauser said she will follow up with him about his specific concerns:
Dale Thompson recalled that one of the challenges with ICWA was the requirement for qualified expert witnesses (QEW). Ms. Muhlhauser agreed that QEW’s have been an issue, noting that in Bismarck they are calling experts every time there is a placement, but there is a problem with finding QEW’s. The Department has suggested it is not appropriate to use tribal social workers. Ms. Muhlhauser said that the Department has been doing some recruitment in the community for elders, and county social services has been doing some research in this area. Ms. Cleveland said in the case where Cass County has had witnesses, they have used a variety of resources. Ms. Muhlhauser said there has been discussion about creating a central list of QEW’s, but there are resource issues, like funding, training, support, etc. The court witness fee is not enough to pay witness expenses, which are very troublesome issues right now. Ms. Muhlhauser added that presently in Bismarck, referees are demanding QEW’s on ICWA cases, and because one can’t be located, the cases are slowing to a stop. She also added that some judges have said that unless the QEW agrees with the petition, the case won’t go forward. Ms. Muhlhauser indicated that the QEW should not be the deciding force, but rather an expert in supporting role. Mr. Thompson said he had experienced problems with QEW’s not understanding their role. Ms. Muhlhauser said that in Minnesota, QEW’s are treated as states witnesses. She would like to move forward with a statewide program. Ms. Muhlhauser indicated that with Three Affiliated Tribes, the ICWA person employed by the tribe is doing a lot of QEW work. She added that in Bismarck, there has been a big issue with Standing Rock cases, and not much is known about Turtle Mountain. Mr. Thompson indicated that in Turtle Mountain, the QEW’s are mostly the tribal social workers. Ms. Cleveland indicated that she has had experience with Minnesota tribes, such as White Earth, and if ICWA applies, White Earth comes to get the kids. She agreed with Mr. Delorme that the primary initial struggle is whether ICWA applies.
5th Agenda Item:
Judge Kleven reviewed the discussion from the last meeting regarding the question of whether court appearance is required in a Chapter 27 termination of parental rights in Cass County. Robert Freed had said at the last meeting that in Cass County, judges don’t require an appearance. Mr. Hentzen said that based on his research since the last meeting, this was simply not the case. Ms. Cleveland added that, unless the termination arises under N.D.C.C. Chapter 14 (and even then), her observation is that appearances are required.
6th Agenda Item: Interest of F.F.
Following up from the last meeting, Justice Maring discussed the definition of “deprived child” and how it had been challenged in a recently issued Supreme Court case, Interest of FF, 2006 ND 47. The issue of the case was whether or not an amendment to the statute – removal of the previously existing “OR” between N.D.C.C. 27-20-44.1(b)(1) and (2), required the petitioner to provide the elements of subdivision 1 before proceeding to terminate parental rights. The appellant’s argument was that because the “OR” was removed, if the petitioner were proceeding under subdivision 2 (the amount of time the child was out of home) the petitioner also had to prove the elements of subdivision 1 before terminating parental rights. The Supreme Court held that even though the “OR” was legislatively removed, it was not necessary to prove the elements of subdivision 1 in order to terminate under subdivision 2. In other words, parental rights may be terminated upon proof that the child is deprived, and the child has been out of home for the required period. Justice Maring noted that this case illustrates the importance of examining the wording of the revised N.D.C.C. § 27-20-44. Michelle Kommer will review the opinion and incorporate necessary changes in the proposed statute.
7h Agenda Item: Statutory Reference to UPA within N.D.C.C § 27-20-45(2)(a)
The question raised during the previous meeting was whether juvenile code in other states refers to the Uniform Parentage Act (UPA) by name, similar to N.D.C.C. § 27-20-45(2)(a). Research revealed that the UPA has been adopted by only twenty states, and even states that have adopted the UPA may not refer to it by name within statute. The group discussed the difficulty in not only to determine what other state’s laws are, but how they would be applied. The group agreed that the statute should reference the section of the N.D.C.C. that contains the UPA, and not refer to the parentage laws of other states. Michelle Kommer will identify the appropriate citation and incorporate into the UJCA re-draft.
8th Agenda Item: N.D. Jurisdiction to modify custody orders in cases of abandonment per N.D.C.C. § 27-20-46
Michelle Kommer reviewed the action item assigned at the last meeting:
Ms. Cleveland asked what effect a TPR has on a pre-existing guardianship that was established by the order of a court in another state. For example, where a grandparent was appointed as guardian in a South Dakota court, subsequently deprives the child in Fargo, absconds (leaving the child in county custody), and Cass County moves to TPR, what effect does this have on the guardianship? How is the guardianship effectively extinguished?
Research revealed that under UCCJEA, a North Dakota Court may modify the custody order of another state under the emergency jurisdiction provision, and may gain home-state jurisdiction to modify the original custody order by terminating parental rights upon either the passage of time, the permission of the home state, or a finding by the home state that the North Dakota forum is a more appropriate forum.
Continuation of Review of the UJCA
N.D.C.C. §27-20-47 Disposition upon termination of parental rights:
Ms. Muhlhauser said that her recollection is that the wording has always been “executive director” (ED). She noted that every now and again an order must be tweaked for improper language, but this is infrequent. She indicated that most of the cases are courtesy-managed by the county for the ED, and that there is a lot of discussion about the state reimbursing the county for these services. She noted that about half of the children who have TPR’s are in Cass County. The remaining half are in Bismarck, Minot, and rural counties. Ms. Muhlhauser stated that in January, there were 168 children in care where parental rights have been terminated, but a permanency plan is not finalized. She noted that one-third of these cases are moving quickly toward finalization. Judge Kleven asked if there are many children placed with family as guardian? Ms. Muhlhauser said no, because the financial compensation for guardianship is so much less than in foster care. Consequently, these children are staying in foster care. Mr. Hentzen asked if the children are better off in family guardianship than foster care. Ms. Muhlhauser responded that it depends. In the case where the child is in foster care, the foster parent can’t afford to become a guardian, for the cut in support payments. Hence in this situation, foster care is the best arrangement. Mr. Hentzen asked what this arrangement does for the perception of non-permanency? Ms. Muhlhauser answered that it depends on how you view permanency. She said the federal government’s position is that long-term foster care is not permanency, but many times for the children, this is permanent. Mr. Hentzen asked if there is a lot of “heartburn” about having to do an annual permanency hearings in these cases? Ms. Cleveland answered that in most of the cases of long-term foster care, the children are not adoptable because of their developmental, emotional, or behavioral problems. She noted that while their foster parents are committed, they are not committed to the point of their own financial devastation. She added that in some of these cases, adoption is not even identified as the permanency goal. The goal may instead be independent living. Mr. Lick said that many of those children are those in the custody of youth corrections, because there is no other place for them to go. Mr. Lick said there are positives and negatives to youth corrections’ children being included in these numbers. He noted that one of the negatives is that the system indicates that there are a lot of kids in the system for a long-term, which might be somewhat deceptive. Mr. Hentzen asked if the judicial officers are giving any pushback? Mr. Lick said that most of the youth corrections’ children are in the system for about two years, from ages 16-18 or so. Mr. Thompson added that the children with Asperger’s Syndrome are not ready to be independent at age 18, and this is where you run into the problem of lack of family support. Ms. Cleveland said that Cass County has had three or four of these children subject to TPR who have gone in to foster care, proceeded to age out, only to return to foster care where the county had to petition for adult custody due to the specific diagnoses. Judge Kleven suggested that this seemed to be somewhat routine based on her experience. Ms. Muhlhauser noted that anecdotally, the 168 children awaiting permanency fall into three categories. One third are on a fast track to adoption. One third vacillate between adoption as goal, versus another plan for permanent living. The final third are simply not adoptable and will be raised in foster care. She noted that the third group is the most vulnerable, for it is unknown what will become of them when they turn eighteen. The second group is at risk of moving into the last group. Ms. Muhlhauser said that the orders completed within the Department of Juvenile Services are complete and very specific transition-to-adulthood plans, and that there is a lot of work to do in child welfare system to match this, particularly in the rural counties. Mr. Hentzen asked how often do permanency teams meet post termination? Ms. Muhlhauser stated that these teams continue to meet quarterly. She said there are a lot of situations where guardianships occur, and then dissipate, and there is no way to track where there are guardianships. Judge Kleven asked who pays for the attorney where there is a guardianship under Section 30.1? Ms. Muhlhauser said that sometimes the social worker is still with the child, and sometimes not, but there have been discussions about creating a guardianship in juvenile court. She added that if it is done in that manner, it would make sense for the State’s Attorneys to bring the action. She added that many participants in the system are unaware of the provision is in the UJCA, so proceed under Chapter 30 instead, which results in State’s Attorneys having to hire the petitioner’s private attorneys. Ms. Muhlhauser said that there is money available to assist guardians in these situations, approaching $1500 per guardian. Ms. Kringlie said that one of the findings in the Best Practice Committee prompted a recommendation to provide for a guardian within the UJCA. Ms. Muhlhauser added that there has been money added to subsidize guardianships, and people are encouraged to access it. Ms. Cleveland asked if the criteria for utilizing these funds were still extremely restrictive? Ms. Muhlhauser answered that no, there is a new policy directive out that doesn’t prevent young kids from getting guardians, and the preference is to use the subsidized guardians, so the restrictions are much less. She noted that on the other hand, the money is not great, it is presently at TANF level, which is distinctly less than foster care.
N.D.C.C. §27-20-48 Guardian Ad Litem
Mr. Hentzen asked how often judicial officers adhere to the language “shall appoint…..if no parent, guardian, custodian…if . . . interests conflict…”. Judge Kleven said that a guardian ad litem is appointed automatically in deprivation cases, but not a case involving delinquent/ unruly. She noted that if the judge finds deprivation, then he/she has also made this finding. Ms. Muhlhauser said that formerly, there was a provision in the code to this effect, and that this particular section pertains to cases involving deprivation. Mr. Hentzen said that this is something that should be addressed in the rule, because the only present reference to lay guardians is within Chapter 14, similar to Rule 8.7. He noted that he would like it to be considered that if there are going to be separate rules for juvenile court, there should be reference to lay guardians here. Judge Kleven asked if this section should say “appoint lay guardian ad litem”, because if an attorney is to be appointed, there must be a finding of indigency. She added that the rules should contain a statement outlining lay guardian’s responsibilities. Ms. Muhlhauser agreed. Judge Kleven asked, outside of the rules, are there any proposed changes to this statute? The group agreed the statute should say “lay” guardian at litems. Judge Kleven said, under Rule 8.7, the GAL can call witnesses – should a lay GAL be able to? Ms. Muhlhauser answered no, because there are differences between the legal GAL and the lay GAL. Judge Kleven said that the role of custody investigator, legal GAL, and lay GAL should be defined. Ms. Muhlhauser said that for training purposes, in the absence of a statute that defines these roles, there is a written a definition that is used in training.
Judge Kleven asked if there were any other changes, other than adding “lay”? Ms. Cleveland said, based on the last discussions here, when TPR occurs, attorneys continue to be appointed as GAL’s. Mr. Hentzen said this practice was approved by the administrative council, that the term attorney GAL is not applicable, and if child is in need of attorney, this is the attorney for the child, and the lay GAL may be appointed through TPR proceedings. He said that what needs to happen now is that there must be another appointment at the petition for the TPR, but it is suggested that the same GAL stays in place for continuity. Previously it was a matter of finances, requiring the lay GAL to be done at TPR, but now, the lay GAL should continue through the TPR, and must be requested by court order. Judge Kleven said she has received questions from judges who have asked whether they have to appoint an attorney GAL when they already have a lay GAL. She has responded that it is their choice and appropriate if they feel it is necessary. Mr. Hentzen said that these questions arose out of the indigent defense committee objecting to their attorney being appointed automatically. He said that before the attorney GAL can be appointed, the judge has to make a finding that it is needed, AND the party is indigent. Ms. Muhlhauser asked Ms. Cleveland if she felt clarification is needed. Ms. Cleveland responded in the affirmative. She added that sometimes there is both, sometimes one, etc., and her perception is that there is a lot of confusion as to the lay and attorney GAL, and how their roles differ?
N.D.C.C. §27-20-48.1 Appointment of Legal Guardian
Judge Kleven noted that this section refers back to Chapter 30. Ms. Muhlhauser noted that it seems simpler to proceed in Juvenile Court. Judge Kleven asked if language should be taken from Chapter 30, and Ms. Muhlhauser agreed that this could be done in conjunction with the other petitions. Judge Kleven asked if a guardianship is filed in Juvenile Court, whether it is reviewed? Ms. Muhlhauser said no, when a guardianship is granted in Juvenile Court, the County’s custody ends, and the order is vacated. Ms. Cleveland noted that she did not find this statute useful, and has seen it used once in the past three years, when she filed a TPR, and a grandparent, who was antagonistic of the ongoing process to TPR, filed for guardianship under this statute in order to disrupt the TPR. Ms. Muhlhauser said that even if this statute were removed, the grandparents in the aforementioned example could still seek the same result. Ms. Cleveland countered that if the statute were removed, it would appear to be condoned action. The group agreed that reference to Chapter 30.1-27 should be removed and replaced with reference to 27-20-30.1(3) as follows:
Add “under 27-20-48.1”
It was agreed also to remove “in a proceeding under Chapter 30.1-27” from this chapter. Ms. Cleveland added that guardianships aren’t as stable as TPR’s, for guardians can change their mind. Justice Maring said that the group should review Chapter 30 because there is a list of ways to terminate a guardianship, and there should be a similar way to terminate a guardianship in Chapter 27. Ms. Muhlhauser said if a guardianship can be done under the Juvenile Code, it should be, but that Cass County is currently the only County doing guardianships under the Juvenile Code. Ms. Kringlie added that there are more problems with doing a guardianship under Chapter 30 because guardians don’t want to pay an attorney.
N.D.C.C. §27-20-49 Costs and Expenses
The group agreed that this statute is working well presently.