Meghan Bishop recently represented a client who was charged with driving under the influence of intoxicants – alcohol and marijuana. The client used medicinal marijuana the evening before and was drinking while driving, and there was video of the driving and open container violation from a State Trooper. After a day-long trial, the jury was out for over two hours and could not come to a decision regarding guilt. The DDA, rather than try the case again, offered the client late-entry to diversion and the client took the offer. Initially, the client was ineligible for diversion because the client failed to appear at arraignment. This was a great result for all.
Every DHS case begins with notification to the agency by an individual that is concerned about the safety of a child. If the case is not closed at screening, then the assessment process begins. The assessment is started before any party steps into court, so it is important to determine if the agency has made reasonable efforts to prevent the removal by looking at the agency’s compliance with the assessment process.
SAFETY THREATS AND DISPOSITION
During the assessment, the worker must determine if a safety threat exists. To determine this, the caseworker should speak to the family, to the children (separate from the alleged abuser) in a manner consistent with the Oregon Interview Guidelines, and interview and/or obtain records from collateral contacts such as teachers or doctors.
After the investigation is complete, the worker must make a dispositional finding of either, “unfounded”, “unable to determine” or “founded”. Pursuant to OAR 413-015-1000, “founded” means there is reasonable cause to believe that child abuse or neglect occurred; “unfounded,” means no evidence of child abuse or neglect was identified or disclosed; “unable to determine, means there are some indications of child abuse or neglect, but there is insufficient data to conclude that there is reasonable cause to believe that child abuse or neglect occurred. To make a “founded” determination the “worker must determine if there is reasonable cause to believe that child abuse or neglect occurred and explain the basis for the determination.” Oregon Child Welfare Procedural Manual, Chapter II, Section 10.
On January 1, 2014, grandparents were granted the following additional rights in dependency cases:
- From the beginning of the case, DHS is required, and has an ongoing obligation, to make diligent efforts to identify and obtain contact information for the grandparents of a child or ward committed to the Department’s custody.
- DHS shall give the grandparent notice of the date, time and location of all court hearings concerning the child or ward. There are two exceptions to this rule:
- If a grandparent of a child or ward is present at a hearing concerning the child or ward, and the court informs the grandparent of the date and time of a future hearing, the Department is not required to give notice of the future hearing to the grandparent; or
- Upon a showing of good cause, a court may relieve the Department of its responsibility to provide notice
- If a grandparent is present at a court hearing, the court shall give the grandparent the opportunity to be heard
- If the grandchild is in substitute care, the grandparent may request at a court hearing that the court order visitation or other contact or communication between the grandparent and the grandchild.
- The grandparent must notify DHS and parties’ attorneys in the case of his or her wish to make the visitation request at the hearing at least 30 days before the date of the hearing.
- The court may grant the grandparents request for visitation or other contact or communication in whole or in part if the court finds the following:
- An ongoing relationship existed between the grandparent and the grandchild that included regular visits or other contact or communication; or despite the grandparents efforts, no ongoing relationship existed between the grandparent and the grandchild due to circumstances beyond the grandparent’s control;
- Ordering visitation or other contact will support and not interfere with the development and implementation of a permanency or concurrent permanent plan for the grandchild;
- Ordering visitation or other contact will not reduce the frequency or the quality of a parent’s visitation or other contact with the grandchild;
- If the court determines consultation with the grandchild is appropriate, the ward has been consulted and agrees that the court should allow the grandparent’s request in whole or in part;
- Ordering visitation or other contact is in the grandchild’s best interests; and
- Ordering visitation or other contact would not unreasonably burden the resources of DHS.
- Unless otherwise agreed by the Department and the grandparent, the costs of transportation, lodging, food or other expenses required to implement court-ordered visits and contact shall be the responsibility of the grandparent.
- A grandparent may not challenge on appeal an order or judgment of the court regarding visitation, communication or contact. (this does not preclude the parent or grandchild from making an appeal)
- At the conclusion of a court hearing, the court order must include findings of the court as to whether the grandparent had notice of the hearing, attended the hearing and had an opportunity to be heard.
- A grandparent is not a party to the case unless granted intervener status.
This is a significant change in how grandparents will be treated in dependency matters. It gives grandparents an affirmative right to be notified, heard and request visitation. Prior to this, grandparents needed to be proactive to ensure they could speak on behalf of their grandchildren and in some instances, have to file for either intervention or rights of limited participation.