VISITATION WITH CHILDREN BY PARENTS, SIBLINGS AND FAMILY MEMBERS UNDER WASHINGTON DEPENDENCIES Sylvia Glover, J.D. Sr. Counsel/Assistant Attorney General CASA Conference/October 20, 2013 An introductory note . . . • Presenter is a career assistant attorney general following judicial clerkship with the Honorable Gerry Alexander and a brief period in private practice. Background includes assignments in DSHS, Torts and Washington State University Divisions of the Office of the Attorney General. Currently representing DSHS, primarily DCFS in Stevens Cty. • Opinions expressed in this presentation are those of the presenter only. They are not opinions of the Attorney General or Office of the Attorney General, official or otherwise. Overview • Statutory Law* • DSHS/DCFS policy incorporating the law (including cites to statutes)* • Case law* • Ways to bring your concerns to the court • Hypotheticals *Handouts available here in hard copy. Email [email protected] for electronic versions. Some basic principles and thoughts . . . • Statutes and case law control visitation within families in dependencies. • Agency policies interpret the law. In the event of conflict, the law controls. • Visits are impacted by interpersonal and financial realities (transportation, facilities, etc.). • Parties in dependencies have different roles and perspectives within the law. • Reasonable people have different opinions about these very complicated, multi-faceted issues. • The decision of the judge/commissioner is the law of the case unless and until a different decision occurs. Types of visits between parents and children (defined per CA Policy 4254) 1 • Unsupervised—often with safety rules incorporated into court order. Requires parent to be primary care giver willing/able to safely care for the child 2 • Monitored—requires another approved adult to periodically observe and intervene when needed 3 • Supervised—requires another approved adult to maintain line of sight and sound supervision and intervene as needed Note: Combinations can occur (such as supervised followed by an unsupervised walk to the park to play and return, for example). Statutory overview • • • • • • • RCW 13.34.020: Family unit is a fundamental resource of American life to be nurtured. • Child has rights to basic nurture, health, safety. • When child’s rights and legal rights of parent conflict, “rights and safety of the child should prevail.” • “In making reasonable efforts under this chapter, the child’s health and safety shall be the paramount concern.” RCW 13.34.025: DSHS obligation to coordinate and integrate services, including ensuring that siblings have regular visits as appropriate. Remedial services include therapeutic services and transportation. Limitations on the section. RCW 13.34.065: Shelter care statute. Shelter care order shall set forth terms/conditions for parent, sibling and family visits. RCW 13.34.130: Disposition. Visits including sibling. • Presumption that placement, contact or visits with siblings in the child’s best interests so long as jurisdiction and/or willingness re: siblings, no “reasonable cause to believe” that contact would cause jeopardy to health, safety or welfare or efforts to reunite with parents. • Parental visits cannot be reduced to provide sibling visits. • Visits with step-sibs may be ordered if above factors met + “child has relationship and is comfortable” with them. RCW 13.34.136: Permanency Plan of Care. Visits. Central statute concerning visits. • Principles concerning visits. • Visits typically continue up to termination of parental rights, if such occurs. • Consideration of relationship among siblings as part of termination of parental rights, encouragement of adoptive parents to maintain sibling contacts, but no requirement to create same in open communication agreements or authority of court to require as condition of termination /adoption. RCW 13.34.180(1)(d)(iii): Note on lack of contact based on incarceration or military service. RCW 13.34.200: Order Terminating Parental rights—no further rights to visits between the child and parent. (Any open communication agreement is contractual, not contingent or impacting termination of parental rights.) RCW 13.34.136 contains central principles of visitation and is worth reading in whole. Visitation is the right of the family, including the child and the parent, in cases in which visitation is in the best interest of the child. Early, consistent, and frequent visitation is crucial for maintaining parent-child relationships and making it possible for parents and children to safely reunify. The supervising agency or department shall encourage the maximum parent and child and sibling contact possible, when it is in the best interest of the child, including regular visitation and participation by the parents in the care of the child while the child is in placement. Visitation shall not be limited as a sanction for a parent's failure to comply with court orders or services where the health, safety, or welfare of the child is not at risk as a result of the visitation. Visitation may be limited or denied only if the court determines that such limitation or denial is necessary to protect the child's health, safety, or welfare. The court and the department or supervising agency should rely upon community resources, relatives, foster parents, and other appropriate persons to provide transportation and supervision for visitation to the extent that such resources are available, and appropriate, and the child's safety would not be compromised. Courts interpret statutes and illuminate the law. Case law interpretation: In re Tyler L, 150 Wn. App. 800, 208 P.3d 1287 (Wash.App. Div. 3 2009) Issue: Did the trial court abuse its discretion by suspending visits? Facts: • • • • GAL moved to suspend visits. DSHS did not join in motion. The mother unsuccessfully requested therapeutic visits that were recommended by a mental health specialist. Children (8 and 4) dependent with supervised visits with mother. Return home under dependency unsuccessful. The mother “attended visits regularly, showing affection and appropriate interaction in general.” Visits became “problematic, apparently not due to [the mother’s”] conduct.” Evidence: • Foster parents reported severe physical and emotional responses before and/or after visits with their mother. • OPD SW observed a two hour visit and saw “nothing that was of cause for great concern.” “[S]he noted that the ‘fear, anxiety and/or sadness of separation that stems from both anticipating and leaving a visit may cause a child to act out.’” • Child mental health specialist recommended future contact between the mother/children occur “in therapeutic setting to ensure each child’s needs are met and to work on creating a healthy parent/child relationships.” • Neuropsychologist diagnosed Tyler w/ an attachment disorder and opined that “structure and interventions are absolutely necessary at this time,” including educating parents and the caregiver on attachment disorders. • GAL opined re: negative impact citing reaction to the visits (as per foster parent). Appellate holding in In re Tyler L.: Absent a showing of actual harm, DSHS was required to provide therapeutic visitation services prior to suspending visits. Suspension required showing of concrete harm/actual risk. • • Court cited statutory law: • “During dependency, ‘frequent visitation is crucial for maintaining parent-child relationships and making it possible for parents and children to safely reunify.’” RCW 13.34.136(2)(b)(ii). • “’Visitation is the right of the family, including the child and parent, in cases in which visitation is in the best interest of the child. . . .. Visitation may be limited or denied only if the court determines that such limitation or denial is necessary to protect the child’s health, safety, or welfare.” • DSHS has obligations to coordinate services toward reunification including therapeutic services for families. RCW 13.34.025(2)(b). The court determined: • An express harm finding is not required if the evidence supports the conclusion that visits are harmful to the child. However, appellate court commented that there was no “harm finding.” • “[T]he harm must be ‘an actual risk, not speculation based on reports.’” • Burden is on the agency to provide that visits pose a “concrete risk” to the children. • “Something more than opinions based on a single incident is necessary to support a finding of risk of harm.” • Under these facts, failing to provide therapeutic visits rather than suspending visits was an abuse of discretion. Suspending visits was “premature” without exploring option of therapeutic visits, which would assist to address attachment disorder and stress in child and help remedy parental deficiencies. Compare In re T.H., 139 Wn. App. 784, 162 P.3d 1141 (Wash.App. Div. 1 2007), and In re T.L.G., 139 Wn. App. 1, 156 P.3d 674 (Wash.App. Div. 1 2003), where restrictions on contact upheld. • Restriction based on quality of the visits and effect on children—clear risk (danger that can be articulated/concrete) • Restriction based on parents’ conduct and not a sanction. Example: Verbal and physical altercation in T.L.G. between parent and DSHS security guard while other parent holding the child; visitation worker refused to work with family; parents refused to address these deficiencies . . .. (Presenter’s note—caution that single instance unlikely to support suspension unless extreme and/or combined with other circumstances like parent’s refusal to attempt remedy.) • Lack of appropriate provider or professionals refuse to provide visit services given the parental conduct. [Presenter’s note—caution relying on this without very clear basis . . ..] • Citation to principle that rights of child to safety prevail over rights of parents. Courts careful to note: Visits as right of families; maximum parent-child contact when in the child’s best interests; no use of visits to sanction failure to comply with court orders or services; and no limitation or denial of visits without risk showing (now concrete risk per Tyler L.). Reasons that do not support restricting visits: • • • • • Punishing the parent for past misconduct that resulted in damage to the child (but note problem of child truly unable to tolerate the parent currently due to past abuse/neglect—e.g., traumatized child whose therapist indicates will be harmed by contact at this time, particularly if combined with uncooperative parent/parent who will not attempt to develop insight) Mere inconvenience Parent(s) not doing services Sanctioning or punishing the parent for behavior not impacting the visits, especially outside the visits (i.e., relapse and related behavioral dysfunction not resulting in concrete harm to child in visit) Mischaracterizing parental contact as comparatively unimportant (to some other commitment of the child or family)—but note balancing issues (e.g., school and other commitments pertinent to child’s best interests) Services that provide alternatives to ceasing contact when visits appear to be failing (apparently damaging to the child intuitively but no concrete proof, visits chaotic & frustrating to parent[s]/child) 1 • Parent instructional services 2 • Family therapy (also sometimes called “therapeutic visits”) 3 • Combined (e.g., supervised + family therapy or family instructional) Other options short of indeterminate suspension— all requiring good faith, creativity and transparency 1 • Agreed interlude/break with services for parent(s)/child and visit review date 2 • For older minors: Contact as arranged via the social worker and/or therapist 3 • Other individualized options? Practice tip: Commit the plan to court order so that all parties are clearly on the same page and can refer to the agreement. Reasons that support changes and can support suspension: • • • • • • • Detailed/concrete examples of current or potential concrete physical or emotional harm, such as CASA observations Expert opinion: Therapist recommendations (best if supported by concrete examples and analysis, regardless of the recommendation) Child’s therapist Parent’s provider Family therapist Social worker Reasonable inferences of harm are still sensible, child protective arguments: A child need not be injured or irreparably broken before safeguards established. Children’s Administration Practices/Procedures Guide, 4254/Parent, Child and Sibling Visits consistent with the law Parent/child Sibling • • • • • • • • • Efforts to hold within 72 hours of placement Explicit adoption of principles of RCW 13.34 re: visits, their importance and right of family when visits in child’s best interests “Visits can be limited or terminated when the child’s, health, safety and welfare compromised. The court must approve all changes to a visit plan if the child is dependent.” Adoption of principles of RCW 13.34.136 “Court approval must be obtained to reassess visit plans when a psychosexual evaluation has been court ordered.” Visit plans • • • • Adopts statutory principles Provides for visit plans Provides for sibling visits with parental visits Provides for other forms of contact to be substituted when personal visits not possible Continued for minors post-trm unless approved exception applies Contacts not limited as a sanction for a minor’s behavior or incentive to change the child’s behavior Visit plans Ways to raise your concerns— Motion heard by the communicating to the court per notice rules in your county or (in parties and court unusual/compelling/ exigent circumstances) on shortened time Informal communication among the parties (verbal or writing) (often results in agreed changes in the case/court order) CASA report and/or testimony to the court in the regular course of the dependency (such as at a review hearing) Hypothetical 1: What do you recommend for visits at dependency disposition in this case? The seven year old child was removed from the mother’s home. He has had occasional contact with his dad. The father interacts very well with the child, as confirmed by the parent-child assessment. He has appeared for visits with the smell of alcohol on his breath but did not seem impaired. The father has a history of DUI convictions and agrees to return to substance abuse treatment per an D/A eval during the shelter care period. The father missed two visits during 60 days of shelter care. He has been late three other times, stating he had transportation problems. The father hasn’t been late or missed anytime in the last three weeks since the CASA mentioned to him that this was stressful to the child. Hypothetical 2: What do you recommend to coordinate this complex scenario in accordance with law and the dependent children’s best interests? • • • • • Family constellation consists of: mother; three dependent children under the age of ten in foster care/placed six months; their father, with whom the mother continues to reside intermittently; two children of a different father, ages twelve and thirteen, residing with the maternal grandparents for the last five years in third party custody. Parents are using methamphetamine. They have a history of domestic violence but are attending DV services. Law enforcement was called to their residence by neighbors last week but no arrest occurred. The parents attend 70% of supervised visits with mixed conduct at the visits. Recently, one parent became angry at the visitation supervisor, cursed at her in front of the children and threw a pillow across the room. The mother is alienated from her parents with little contact w/ the older sibs for 3 yrs. The dependent children are being treated for a variety of disorders in individual counseling, including PTSD. Attachment to the parents was characterized in assessment as “anxious.” The thirteen year old has been expelled from school for fighting. At this week’s visit, the parents talked to the visit supervisor about why she wrote in her visit notes that the father threatened her. They did not intervene as the children wrestled/fought. Hypothetical 3: What recommendations to the court? Any alternatives before going to court? • • Three year old child dependent for 16 mos. 2:2 family therapy contacts. The following have occurred during the last three months: – The mother misses 50% of visits, despite request that she call in two hours prior. She sometimes misses visits after confirming she will attend. – Mother invited four relatives to a visit, including one who was a RSO. The child did not know most of the relatives. The mother became belligerent when the therapist attempted to counsel them out of the area. The child began to scream as adult confrontation occurred. – The mother has promised the child repeatedly that she will be “coming to live with mommy,” despite counseling by the family therapist to avoid such statements. – The mother removed the child’s shirt at one visit and drew “tattoos” on her. – The mother has twice “tweaked” the child on the mouth because the child “sassed” her and she regularly argues that it should be up to her to discipline in visits. The family therapist reported that the child cringes when her mother reaches for her face. – The mother will not bring food to the visits for the child, claiming it’s the job of the relative placement to feed her and noting that she has no money to buy snacks. – The child has begun telling the relative caregivers “me no go” before most visits. She has recently begun hiding under her bed when the relative caregiver looks for her in the morning. She doesn’t want to go for rides in the car. The relatives characterize the child as clingy and fearful after visits. Assessment from the therapist is pending. – The mother reports that the father has recently moved back in with her. He was defaulted in the dependency. She is casually bringing him to visits. Hypothetical 4: What do you recommend in terms of contact and services? Transition? • Parents of toddler have remedied parental deficiencies that brought the child into care at birth such that return home does not pose a manifest danger to the child. • Toddler has problematic attachment to the parents as well as physical health challenges • Current contact schedule is family therapy two hours/week and five hours of unsupervised visits. • Parents want immediate return home. They are wary of new services, state that they will complete current services if necessary to regain placement of the child and are tired of systems involvement. They trust the judge/commissioner on their case and refer to the court order often, do not trust any other participants (SW, CASA, AAG, their attorneys) and appear to sincerely want what is best for their child. Summary • Visits are central and crucial to maintaining parent-child relationships and potential for safe reunification. • In rare and necessary cases, visits may be suspended upon showing of concrete harm/risk—a concept perhaps not fully defined. Suspension should not occur unless other options unsafe/unworkable. • As participants in child welfare, we can all bring to the table creative solutions to visitation issues that work to the benefit of children and families and may work to refine the law. More resources • Scholarly and law review articles readily available via online searches • Web pages for system participants (CASA, OPD, DSHS/DCFS/Children’s Administration, AGO, etc.) readily available via online searches • RCW 13.34 http://apps.leg.wa.gov/rcw/Default.aspx?cite=13.34&full=true • RCW 26.44 http://apps.leg.wa.gov/rcw/default.aspx?cite=26.44&full=true • Children’s Administration Practices/ Procedures Guide, 4254/Parent, Child and Sibling Visits http://www.dshs.wa.gov/ca/pubs/mnl_pnpg/chapter4.asp QUESTIONS?