Order Regarding Permanency Plan1 IN THE DISTRICT COURT OF THE ^^^^^ JUDICIAL DISTRICT OF THE STATE OF IDAHO, IN AND FOR THE COUNTY OF ^^^^^ IN THE MATTER OF: ) ) ) ) ) ) [A Child][Children] Under Eighteen ) Years of Age.__________________________ ) Case No. ^^^^^ ORDER REGARDING PERMANENCY PLAN This case came before the court on _____________________________, for a permanency hearing pursuant [Idaho Code § 16-1620][Idaho Code § 16-1622(4)]. The court makes the following findings of fact, conclusions of law, and order, based on the record at the hearing. 1.2 a. The following parties were present for the hearing, represented by the following counsel: ___________________________________________________ _____________________________________________________________________. b. The following parties were not present for the hearing: __________ _____________________________________________________________________. c. The file shows that notice was given to ______________________ [the absent party] in the following manner: ___________________________________. [OPT] d. The following parents and/or legal guardian of the child have not appeared, the court file does not show that service of process has been completed, and further efforts to identify, locate, and serve these persons are necessary: _______ ORDER REGARDING PERMANENCY PLAN PAGE 1 American LegalNet, Inc. www.FormsWorkflow.com _______________________________________________________________________. e.3 [OPT] The child is not an Indian child [children are not Indian children] within the meaning of the Indian Child Welfare Act, 25 U.S.C. §§ 1901- 963. [ALT] e. The child is an Indian child [children are Indian children] within the meaning of the Indian Child Welfare Act, 25 U.S.C. §§ 1901-1963. The child is a member [children are members] or is [are] eligible for membership in the __________ Tribe. [The court file contains proof that notice has been given to the Indian custodian, Indian Tribe, or Secretary of the Interior, as required by the Act.] [The court file does not contain proof that notice has been given in accordance with the Indian Child Welfare Act; further efforts are necessary to serve process in accordance with the Act and to document completion of service in the court’s file.] [ALT] e. At the present time, it cannot be determined whether the child is an Indian child [children are Indian children] within the meaning of the Indian Child Welfare Act, 25 U.S.C. §§ 1901-1963. Further efforts are necessary to determine whether the child is an Indian child [children are Indian children]. 2.4 The permanency plan is [approved] [approved with the following modifications: ________________________________________________________.] a.5 The child has [children have] not been in state custody for 15 of the last 22 months. [ALT] a. The child has [children have] been in state custody and placed outside the home for 15 of the last 22 months. The presumption that termination of parental rights is in the best interest of the child [children], set forth in Idaho Code §16-1629(9) has not been rebutted, and ORDER REGARDING PERMANENCY PLAN PAGE 2 American LegalNet, Inc. www.FormsWorkflow.com the state will file its petition to terminate parental rights by ____________________. The court makes this finding based upon the following: ________________________________________ ____________________________________________________________________________.] [ALT] a. The child has [children have] been in state custody for 15 of the last 22 months. The presumption that termination of parental rights is in the best interest of the child [children], set forth in Idaho Code §16-1629(9) has been rebutted. The court makes this finding based upon the following: _______________________________________________________________.] [OPT] b. The permanency plan for [the child] [the children] [the following child: ________ ____________________] [the following children: ____________________________________] is long-term foster care. There are compelling reasons why termination and adoption, guardianship, or long-term placement with a relative is not in the best interest of the child [children]. The court makes this finding based upon the following: _______________________ ____________________________________________________________________________.6 [ALT] 2. The permanency plan is rejected. The permanency plan is insufficient in the following respects: __________________________________________________ _____________________________________________________________________. 3.7 This order is based upon the information set forth in ______________, prepared by ___________________, and dated _______________, which is incorporated by reference in this order. [ALT] 3. The court finds and concludes as follows: ______________________________ _____________________________________________________________________. ORDER REGARDING PERMANENCY PLAN PAGE 3 American LegalNet, Inc. www.FormsWorkflow.com [OPT] 3. This order is entered consistent with the stipulation of the parties. The court finds that all parties entered into the agreement knowingly and voluntarily, that the agreement is in the best interests of the child[children], and that the stipulation has a reasonable basis in fact. 4. 8 a. The Idaho Department of Health and Welfare has made reasonable efforts to finalize a permanency plan for the child [children]. b. The court makes this finding based on the information set forth in _________________, prepared by ________________, and dated _______________, which is incorporated by reference in this order. [ALT] b. Specifically, the court finds and concludes as follows: _________ _____________________________________________________________________. [ALT] 4. At this time, the evidence is insufficient to support a finding that the Idaho Department of Health and Welfare has made reasonable efforts to finalize a permanency plan for the child [children]. The following further efforts, or further evidence of the department’s efforts, is necessary to support a finding that the department has made reasonable efforts to finalize a permanency plan for the child [children] : ___________________________________ _____________________________________________________________________________. 5. A review hearing is scheduled for [date, time, and location.] At the review hearing, the court will review the parties’ progress on the plan and determine whether any modifications need to be made to the plan. IDHW and the GAL will prepare written reports as to the parties’ progress on the plan, including any suggested modifications to the plan. The petitioner and the GAL will file the report with the court and serve copies of the report on the ORDER REGARDING PERMANENCY PLAN PAGE 4 American LegalNet, Inc. www.FormsWorkflow.com parties at least five days prior to the review hearing. 9 [ALT] 5. a. This permanency hearing is continued to [date, time and location]. b. IDHW is ordered to prepare a new permanency plan. The new plan will address the problems identified in paragraph 3 above. The petitioner will file the plan with the court and serve copies of the plan on the parties at least five days prior to the hearing. [ALT] b. IDHW is ordered to make the following further efforts to finalize the permanency plan for the child, prior to the hearing: ____________________________________ __________________________________________________________________________. [OPT] 5. a. The petitioner and the Idaho Department of Health and Welfare will make all reasonable efforts to identify, locate, and serve process upon the following persons: _________________________________________. If service of process is completed, the petitioner will file proof of service of process with the court. If service of process is not completed, the efforts to identify, locate, and serve these persons will be documented in a written report to be filed with the court prior to the next scheduled hearing. [Reasonable efforts will include, but are not limited to, the following: ________________________________________ ______________________________________________________________________.] b. The petitioner and the Idaho Department of Health and Welfare will make all reasonable efforts to determine whether the child is an Indian child [children are Indian children], within the meaning of the Indian Child Welfare Act. If it is determined that the child is an Indian child [children are Indian children], the petitioner will serve process in accordance with the Indian Child Welfare Act and will file proof of service of process with the court. The efforts to determine whether the child is [children are] Indian children will be documented in a written report to be filed with the court prior to the next scheduled hearing. [Reasonable efforts ORDER REGARDING PERMANENCY PLAN PAGE 5 American LegalNet, Inc. www.FormsWorkflow.com will include, but are not limited to, the following: _______________________________________________________________ ______________________________________________________________________.] 6.10 [Other] DATED this _____ day of ____________________, 20___. ______________________________ Magistrate Judge CERTIFICATE OF SERVICE I certify that on the _____ day of _______________, 20_____, I served true and accurate copies of the foregoing document on the following persons, either by deposit in the U.S. Mail, addressed as follows and with the correct first-class postage affixed thereto, or by deposit in the designated courthouse mailbox, or by fax to the number indicated below, or by hand-delivery, as indicated below: Name: Served by: [ ] Hand-delivery [ ] Deposit in the designated courthouse mailbox [ ] By fax to: ____________________ [ ] By deposit in the U.S. Mail addressed as follows: Name: Served by: [ ] Hand-delivery [ ] Deposit in the designated courthouse mailbox [ ] By fax to: ____________________ [ ] By deposit in the U.S. Mail addressed as follows: ORDER REGARDING PERMANENCY PLAN PAGE 6 American LegalNet, Inc. www.FormsWorkflow.com Name: Served by: [ ] Hand-delivery [ ] Deposit in the designated courthouse mailbox [ ] By fax to: ____________________ [ ] By deposit in the U.S. Mail addressed as follows: Name: Served by: [ ] Hand-delivery [ ] Deposit in the designated courthouse mailbox [ ] By fax to: ____________________ [ ] By deposit in the U.S. Mail addressed as follows: ____________________________ Deputy Clerk Last updated January 20, 2007. Click http://www.isc.idaho.gov/childapx.htm for most current version. 1 The permanency plan and hearing are governed by Idaho Code §§ 16-1620 and IJR 44 in cases involving a finding of aggravated circumstances and by Idaho Code § 16-1622(4) and IJR 46 in cases where there has been no finding of aggravated circumstances. Permanency planning is discussed in the Idaho Child Protection Manual in Chapter VI. The permanency plan and hearing are discussed in Chapter VII of the Manual. 2 If a parent, guardian, or other custodian fails to appear, the order should include findings that notice was served on the person who failed to appear. If a parent (including a putative father), guardian, or other legal custodian has not appeared and not been served, then the court should enter orders as necessary to ensure that the missing parties are identified, located, and served as early as possible in the proceedings and that the court file contains documentation of service of process. Paternity testing may be necessary to confirm that a putative father is a child’s actual father. The importance of finding and including all parents whose rights have not been terminated, particularly in achieving permanency for the child, is discussed in the Idaho Child Protection Manual at §V.D.2. 3 The court should determine whether the child is an Indian child within the meaning of the Indian Child Welfare Act as early as possible in the proceedings. The court should continue to address this issue at each hearing until any issue as to the child’s status as an Indian child has been resolved, and, if it is determined that the child is an Indian child, until the file contains documentation of notice in accordance with ICWA. The importance of compliance with ICWA, particularly in achieving permanency for the child, is discussed throughout the Idaho Child Protection Manual and specifically in Chapter IX of the Manual. 4 In determining whether to approve, modify, or reject the permanency plan, the court should consider: ___ Whether the current foster care placement is the least disruptive environment and most family-like setting that meets the needs of the child. ___ Whether the plan specifically identifies services to be provided to the child and the foster family, including services to identify and meet any special medical, educational, emotional, physical, or developmental needs of the child, to assist the child in adjusting to the placement, or to ensure the stability of the placement. ORDER REGARDING PERMANENCY PLAN PAGE 7 American LegalNet, Inc. www.FormsWorkflow.com ___ ___ ___ ___ ___ ___ ___ Whether the plan includes terms for visitation and child support, if appropriate (including sibling visitation where siblings have been placed separately). Whether the permanency plan addresses all options for permanent placement of the child. Whether the permanency plan assesses the advantages and disadvantages of each option in light of the child’s best interest. Whether the recommended option is in the child’s best interest. Whether the permanency plan specifically identifies the actions necessary to implement the permanent plan and deadlines for those actions. Whether the permanency plan addresses options for maintaining the child’s connection to the community, including individuals with a significant relationship to the child and organizations or community activities with which the child has a significant connection. What further efforts are needed to finalize or implement the permanency plan. Whether the agency has made reasonable efforts to finalize the permanency plan. If the proposed permanent placement is reunification (where there are no aggravated circumstances): ___ How has each of the issues identified in the case plan been resolved? ___ How often is visitation occurring, and what is the impact on the child? ___ What is the proposed date for the child’s return home and the detailed plan for supervision after the child is returned home? ___ What services are to be provided to the child and the family after the child returns home? In what services will the parents be required to participate? ___ Why is this plan in the best interests of the child? If the proposed permanent placement is termination of parental rights and adoption: ___ What are the facts and circumstances supporting grounds for termination of parental rights? ___ If aggravated circumstances were not found, what efforts were made to reunify the family? Were those efforts reasonable? ___ Why is this plan in the best interest of the child? ___ Has the petition to terminate parental rights been filed, and if not, by what date will it be filed? ___ Are there relatives who will adopt the child if termination is granted? If not, why not? Are further efforts needed to identify and assess relatives as potential adoptive parents? If so, what? ___ If adoption by a relative is not the plan, is adoption by foster parents the plan? If not, why not? ___ Are there other adults with whom the child has or has had a positive relationship, and are they potential adoptive families? ___ If an adoptive home must be recruited, what efforts are being made to identify potential adoptive families, both locally and in other jurisdictions? ___ Will adoption with contact be recommended? Why or why not? ___ If the child is an Indian child, have ICWA requirements been met? ___ Does the parent want to relinquish parental rights at this time? If the proposed permanent placement is guardianship: ___ What are the facts and circumstances supporting grounds for termination, and the facts and circumstances refuting the grounds for termination? ___ Why is this plan in the best interest of the child? What facts and circumstances support guardianship as better suited to the best interest of the child than termination of parental rights and adoption? ___ If aggravated circumstances were not found, what efforts were made to reunify the family? Were those efforts reasonable? ___ What are the facts and circumstances demonstrating that the individual or couple with whom the child is to be placed is the most appropriate to serve as a permanent family to the child? ___ Is the child living with the proposed guardian? If not, why not? ___ Has there been full disclosure to the proposed guardian of the child’s circumstances and special needs? ___ What is the detailed plan to ensure that this placement will be stable? ORDER REGARDING PERMANENCY PLAN PAGE 8 American LegalNet, Inc. www.FormsWorkflow.com ___ ___ ___ What are the plans to continue any necessary services to the child or the child’s guardian, and how will those services be funded after the guardianship is finalized? What contact will occur between the child and the birth family, including parents, siblings, and other family members? What financial support will be provided by the birth parents? If the proposed permanent placement is long-term foster care: ___ What are the compelling reasons not to proceed with reunification, termination of parental rights and adoption, or guardianship? ___ What is the long-term plan for the care of this child, and why is that plan in the best interest of the child? How will this plan provide stability and permanency for the child? ___ Is the child already living in the home that will be the child’s long-term placement? If not, why not? ___ If aggravated circumstances were not found, what efforts were made to reunify the family? Were those efforts reasonable? ___ What contact will occur between the child and the birth family, including parents, siblings, and other family members? How often is visitation with the parents occurring, and what is the impact on the child? ___ What financial support will be provided by the birth parents? ___ If the child is a teenager, what is the plan to prepare the child for independent living? 5 Idaho Code §16-1629(9) provides that there is a rebuttable presumption that, if a child has been in state custody and placed outside the home for a period of 15 of the last 22 months, the department will initiate a petition to terminate parental rights. That section further provides that the presumption may be rebutted by a finding that filing a petition to terminate is not in the best interest of the child, that reasonable efforts have not been made to reunite the child with its family, or that the child is placed permanently with a relative. 6 Before approving long-term foster care as the permanent placement for a child, federal law requires the department to document, and the court to find, compelling reasons why adoption, guardianship, or long-term placement with a relative is not in the best interest of the child. 45 CFR 1355.20(a). 7 The order should include findings and conclusions sufficient to support the court’s actions. The more severe the action, or the more contested the proceedings, the more detailed the findings should be. 8 This paragraph is required for the annual permanency hearing pursuant to Idaho Code § 16-1622 and IJR 46; it is not required for the 30-day permanency hearing after a finding of aggravated circumstances pursuant to Idaho Code § 16-1620 and IJR 44. Federal law requires the court to make written, case-specific findings, documented in the court record, that the agency has made reasonable efforts to finalize the child’s permanent placement, at or before the due date for the permanency hearing. Federal law requires that the permanency hearing be held within one year from the date the child is considered to have entered foster care and at least once every twelve months thereafter. The date a child is considered to have entered foster care is the date the court found the child to come within the jurisdiction of the CPA or 60 days from the date the child was removed from the home, whichever is first. If the finding is not made in the required manner within the required time, the child will lose eligibility for federal funds. Eligibility may be reinstated once the required findings have been made. See 42 U.S.C. §675(5)(c); 45 C.F.R. §1356.21(b)(2). If the department’s efforts have been insufficient, the recommended best practice is to 1) continue the hearing, 2) specifically identify the further efforts required, and 3) to order that those further efforts be completed prior to the continued hearing. The reasonable efforts finding can then be made at the continued hearing. The functions of the review hearing and the annual permanency hearing overlap somewhat. At the annual permanency hearing, the emphasis is more on the deadlines, to ensure that permanency is achieved in as timely a manner as possible. The key function of the permanency hearing is to set a deadline for determining the permanent ORDER REGARDING PERMANENCY PLAN PAGE 9 American LegalNet, Inc. www.FormsWorkflow.com placement of the child, to determine the permanency placement for the child, and to set a deadline for implementing that placement. 9 Review hearings must be held at least once every six months after entry of the decree. Idaho Code §16-1622(3). Review hearings should be held at least once every three months, unless there is good reason why more frequent review is unnecessary. The CPA does not require IDHW or the GAL to submit written reports for a review hearing, but the court can require them. Filing of review reports is recommended as best practice, to document the parties’ progress in the court record and to support later court actions. 10 The order should include any other matters that need to be addressed to provide for the welfare of the child, to promote resolution of the case, or to prepare for the review hearing. For example: ___ Orders needed for examination, evaluation or other services, pending the review hearing ___ Orders needed for release of information (medical records, school records) ___ Paternity testing ___ Other persons to be summoned for the review hearing ___ Potential for mediation ___ Transport orders (if parent or child is in detention, jail, or prison) ORDER REGARDING PERMANENCY PLAN PAGE 10 American LegalNet, Inc. www.FormsWorkflow.com