WHO - All children placed in care
except for JD placements in secure detention, secure placement
facilities or camps must have permanency hearings if they remain
in care. In a JD placements, the hearing can not be used to reduce
or terminate the placement time period originally ordered.
ALSO: Placements that the court has made under FCA 1055
that require the child to be placed in the custody of a relative
or friend under agency supervision will also require a permanency
hearing held at same time calculation.
WHAT - A "hearing" must "take place" or "be held" before the end of the initial 12 months of the child's placement
in foster care, calculated as starting at 60 days after the
removal from the home or a finding of abuse or neglect whichever
is sooner. It is important to calculate the date that the
permanency hearing will be due when the dispositional order is
entered so that the order will end when the hearing is due. A11 subsequent permanency hearings held every 12 months "following
the preceding permanency hearing", in other words before 12 months
from the DATE of the last hearing, NOT 12 months
after the end of the last order. Agencies and courts should
consider actually having a hearing earlier if that makes sense, as
in situation where case is pending in court for close to a year
without resolution. If that seems like a good idea, it is
important to remember the notice provisions for foster parents.
The agency must be very careful about watching and monitoring the
time deadline after the hearing has been filed for if there are
service problems or any adjournments. Agencies and courts should
consider calculating the date for hearing and the date to file for
hearing on all cases as soon they reach the 60 day point and
placing that date in any order for clarification and notice to
all.
HOW - In comparing "permanency hearings" to prior
extension and review procedures, it can be helpful to remember
that all the prior requirements are still in the statute and the
following ones are now added:For Article Ten and Voluntary placements, the agencies
permanency plan must be included with the petition The agency
should try to reach agreement with the court as to what court
would like to review; that is what type of information or form is
to be attached to the petition -the whole UCR, portions of the
UCR, a summary or court report of the plan. If a whole or partial
UCR is to be used, it would be helpful to agree as to if it will
be the most recent one or one prepared within a particular time
frame.The foster parents or resource having care of the child are to
be noticed by the agency to attend the permanency hearing and are
to be given an opportunity to present relevant information. In
Article Ten placements, the statute says that the foster parents
are to be served with the petition and all the supporting
affidavits and reports. It also says that they are partys to the
matter.Everyone at permanency hearings will be aware of the upcoming
15 month mandate to file a TPR and it is likely that this will be
the subject of discussion. If the agency has already determined
that a TPR is appropriate, it may well have filed one or be in the
process of filing one at the time of the permanency hearing. This
may result in more contested hearings.These hearings have always been considered dispositional in
nature and therefore hearsay has been admissible. Courts may be
looking for more non-hearsay information, such as testimony by
service providers given the court's role in determining the
appropriate permanency goal and given that the hearings are more
likely to be contested.
For All permanency hearings the court must
determine:
- What is the permanency plan for this child? - if the child
will be returned to the parent, if the child should be placed
for adoption and a termination petition filed, if the child
should be "referred" for "legal guardianship", if the child
should be "permanently placed" with a fit and willing relative,
or if the child should be placed in "another planned permanent
living arrangement" if there are compelling reasons to not
choose the prior permanency goals. This requirement that the
court actually indicate what the goal is for the child may
result in more contested hearings since the parents may be
unwilling to consent to the court making a permanency plan that
does not involve reunification.
- If the goal is reunification, the reasonable efforts being
made to reunify the child to a safe home, or if the goal is not
reunification, what reasonable efforts are being made to
achieve permanency
- If child is over 16 independent living services needs are
to be assessed.
- If the child is placed out of state, the need for continued
out of state care at is to be assessed
- Health and safety of the child are the paramount
concerns
For Art. 10 permanency hearings, the court must also
determine the appropriateness of the agency's permanency plan
- have any circumstances changed?
- does the service plan require any review, adjustment, or
modification?
- has the service plan been complied with by the parties?
- is an extension consistent with the proper permanency
goal?
- would the child be at risk of abuse or neglect if returned
home?
For Voluntary placement permanency hearings, the court
must also
- review what services have been offered
- review alternatives offered if return home is unlikely
- review efforts made in the child's best interests
For both Art. 10 and Voluntary placement permanency
hearings the order must contain:
- the visitation plan
- a direction that the agency inform the parent of the
service plan review dates, their right to be at the service
plan review and that they may bring an attorney or other
representative to the service plan review
- a copy of the court's order and the service plan shall be
given to the parent
- the court can order the agency to file a termination
petition.
Margaret A. Burt
ATTORNEY AT LAW
63 CALLINGHAM ROAD PITTSFORD, NEW YORK 14534
TEL: (585) 385-4252 FAX: (585) 385-7717
