Turn and face the strain (ch-ch-changes)

Thanks to a C_LS attorney for alerting me to the changes to Chapter 39 set to take effect July 1, 2008. Here is a link to the revisions so you can read for yourself.

Allow me to highlight a few of the more interesting ones:

39.01(1); The definition of abandonment is changed. I note that a parent must now maintain (I quote) a "positive" relationship with a child to avoid being guilty of abandonment. One supposes that it is not the parent and child who will be deciding if their relationship is "positive".

39.01(14) adds a new definition, that of "child who has exhibited inappropriate sexual behavior" while not defining what is inappropriate except to say that it is a child under age 12 who is found by either the court or DCF to have committed an inappropriate sexual act. That seems rather broad and subjective to me, and snags everything from typical victim behavior to self-exploration to innocent mimicry of something a child has seen (all depending on the subjective personal standards of the DCF worker) and places it all under the same heading with budding predators. Until someone can explain to me why this change was necessary, it worries me. Section 39.201 also seems to require such children to be treated as offenders and automatically referred to law enforcement.

39.301(39)(g) adds to the definition of harm any baby who is born with any amount of alcohol or metabolite of a controlled substance in his or her body, and deletes the previous requirement of a showing that the child was adversely affected. Wow. This is also added as a ground for TPR (39.8055(1)(k))if the mother had any other child adjudicated as drug exposed. I'll leave it to others for now to explain why this is probably a step in the wrong direction.

39.301(16)(a); Mildly interesting. The Department no longer has to conclude an investigation within 60 days if there is a related and ongoing criminal investigation.

39.504(1); Very interesting, mostly for what is deleted in this section. DCF no longer must file a petition, that is, actually open a judicial dependency case, in order to file for an injunction to "prevent any act of child abuse". We are all familiar with injunctions issued under Chapter 39, but in the past those were within the context of an ongoing judicial case in which parents are provided attorneys.

No more. Now, so long as DCF is conducting an investigation, which may now continue for an indefinite period of time under certain conditions, DCF is relieved of its responsibility to attempt family preservation and/or provide services and to file a petition to which the parents could respond and be provided legal counsel. I hope I'm not making too much of it, but read the revision and tell me what you think. DCF now has a new way to respond to a report: file for an injunction (which might never expire -- this is a change from when it used to end at disposition, that is, after a normal adjudication of the case) and walk away from the situation.

Another step in the wrong direction. By the way, the standard for the injunction is not probable cause, but "reasonable cause". Very broad, that. It seems to me that any anonymous hotline call in and of itself could be treated as "reasonable cause" if it alleges the correct things. Ask for an injunction, get an order disallowing any and all contact between a parent and child, and voila, case closed, DCF's work is done. No appointed lawyers, no services, no fuss, no muss.

The C_LS attorney who tipped me to this change says he doesn't intend to use that provision. I believe him, until and unless his superiors make him. Unfortunately, he's not the only C_LS attorney in the state.

39.507(7)(a); From now on there will be only one adjudication of dependency. There won't be separate trials for different parents. You need to be aware of this, because if you have a non-offending parent, particularly one who is only brought into the case post-dispo, you need to avail yourself of your evidentiary hearing required by the new 39.507(7)(b).

And finally, of the most interesting and dramatic changes:

39.806(1)(e)(1): Our clients now have 9 months to complete a case plan, not 12. This 25% reduction in their ability to achieve reunification coincides neatly with the reduction of their attorney's compensation by 20%, doesn't it?

Legislatively speaking, this has not been a good year for family preservation.