Attacking Oregon DHS' Efforts - Visitation
As parents' attorneys it is important to evaluate a case to determine if DHS is making reasonable efforts to reunify the family. The importance of a no reasonable efforts finding has huge, positive, consequences for our clients. First, it impacts the Title IV-E reimbursement funding for foster care which leads to financial issues for the agency. Second, the caseworker is required to report to higher ups, including central office, as to the reasons for the finding. Third, it alerts to the court to poor casework and forces the court to take more control over the case. In 2009, The Oregon Child Advocacy Project at the University of Oregon published Reasonable Efforts to Reunify in Dependency Cases. At every stage of the proceeding in a dependency case, the court must determine if DHS has made reasonable efforts to effectuate the plan. Though the reasonable efforts standard is not defined in the Oregon statutes or administrative code, the standard can be gleaned from appellate cases, the administrative rules and DHS’ own Child Welfare Procedure Manual. One of the vulnerable areas for the argument regarding lack of reasonable efforts is in DHS’ handling of visitation.
In recent months, I have been putting on more evidence in my cases which includes writing a court letter with my client if appropriate, introducing the article by the Oregon Child Advocacy Project as an exhibit in a disposition, having contested disposition hearings and calling the caseworker to testify about DHS efforts. I also completed an exhibit that contains all of the relevant OAR’s and Child Welfare Procedure Manual sections that are relevant to DHS’ obligations regarding visitation that I regularly introduce and use as a guide in my questioning of the caseworker. This is all permissible evidence under ORS 419B.325 as it is related to the disposition of the case. ORS 419B.340.
If asked, the caseworkers will testify that they are familiar with the OAR’s, that the OARs are the “law" of DHS and they are required to follow them, that they are familiar with the Child Welfare Procedural Manual, that they are required to follow the manual and that the OARs and the manual guide the caseworker as to what their obligation is under reasonable efforts. The Procedure Manual “focuses on best practices in working with families, providers, and colleagues to attain positive outcomes for Oregon children and their families." The purpose of the manual is to “elevate the standard and improve consistency in practice of child welfare delivery in Oregon." Child Welfare Procedure Manual, Ch. I, Sec. 1.
OAR 413-010-0180(11) states that “Each child in the legal custody of the Department of Human Services has the [right] to visit and communicate with aparent or legal guardian, siblings, members of his or her family, and other significant people in the child’s life within reasonable guidelines as set by thecase plan, the visitation plan and the court. OAR 413-070-0800 states that it is DHS’ responsibility to arrange frequent contact with a child and his or her family as it is in the child’s best interest, intended to reduce trauma as well as assure the safety and well-being of the child. “When [DHS] resources alone cannot meet the family contact and visitation needs of the child… the caseworker must solicit help from family and community resources." OAR 413-070-0830(3).
The purpose of visitation is the maintain family contact and it is a service to children. “Visitation preserves a child’s attachment to his or her parents, siblings and other family members, and can lessen both the child’s and the parents’ anxiety about the child being placed in substitute care… One of the best predictors of a successful reunification is the frequency and quality of visits between a child and his or her parents." Further, visitation is face-to-face contact which can be supplemented by phone calls, letters, e-mails, pictures, etc. Child Welfare Procedure Manual, Ch. IV, Sec. 26.
Further, the Procedure Manual provides caseworkers with the “ Principles of Good Visitation Practice," which indicates that the frequency of contact is far more important than the length of the contact, especially in younger children; that the family and other caregivers should be involved in developing the visitation plan to ensure that all interested parties are heard and that they all understand; and, that visitation should be held in the most natural setting as possible.
A caseworker is required to develop a temporary visitation plan with the parent at the time of the first hearing or at the removal – whichever comes first. The plan must be given to all of the individuals participating in the plan. OAR 413-070-0860(1). Despite being a requirement, you will be hard-pressed to find a caseworker that actually does this.
After 30 days of the child entering into substitute care, the caseworker, along with the parents, must develop and ongoing safety plan which must be reviewed every 90 days. OAR 413-070-0860(2).
Parents are given priority in visiting their child when the plan is reunification. But, that does not alleviate the requirement that the caseworker consider visitation with the child and other family members. OAR 413-070-0855. The contact should be as frequent as possible, but no less than once a week. Child Welfare Procedure Manual, Ch. II, Sec. 18.
DHS has an affirmative obligation to include relatives in case planning. OAR 413-010-0320. This includes hearing from grandparents if they assert their rights under ORS 419B.0875, receiving information from interested relatives, notifying relatives of the removal within 30 days of the removal, and may include them in Family Decision meetings. “Maintaining a child’s connections with significant people in his or her life is important to the child’s well-being." Child Welfare Procedure Manual, Ch. IV, Sec. 26, page 7.
A relative has a right to visit and/or communicate with a child in the custody of DHS if it is part of the visitation plan, an order of the court, or it is a part of the opportunities for ongoing connection and support and approved by the caseworker. OAR 413-010-0330.
DHS is required to have contact with relatives within 30 days of removal as outlined in OAR 413-070-0072. As part of this rule, DHS must make return contact with a relative as soon “as reasonably possible but no later within 15 business days."
Children have a right to ongoing connection and support from relatives, even when a relative is not a placement resource as long as the relative can “meet the safety, permanency, and well-being needs of the child" and provide appropriate ongoing support. The caseworker must provide ongoing opportunities for connection and support if a relative meets the above criteria. OAR 413-070-0087.
The fact of the matter is that one hour a week at a DHS office, without clear articulable reasons by a caseworker, is not satisfactory under the rules nor under the reasonable efforts finding. An excuse of lack of funding or lack of resources is no where to be found as a justification for limiting visitation. Rather, the rules and Procedure Manual make it clear that the frequency of visitation is a consideration that must be made on a case-by-case basis which should involve a plethora of family and community input. When asking for your no reasonable efforts finding based on failure to provide appropriate visitation, you should give the court the power to implement a new plan. Under ORS 419B.337(3), the court can order a specific visitation plan and DHS is required to follow such a plan. As one of your exhibits and/or argument give the court your plan – give the dates, name the safety service providers, tell them where the visits will happen, and most importantly tell the court why this plan is the least restrictive plan that is also in the child’s best interest.