December 2024 Newsletter

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Director’s Corner

Don’t Forget to Litigate
Timothy Michaels-Johnson, acting director while Gwendolyn Clegg is on annual leave

When evaluating the skills of an attorney dedicated to child welfare law, we often envision someone who has mastered a unique combination of subject matter expertise, strategic thinking, and empathy. While these qualities are vital, we must also emphasize the attorney’s role as a litigator. The child welfare system operates as an adversarial system, balancing the rights and interests of the parent, the child, and the State (and, importantly, the tribe when the Indian Child Welfare Act applies). These rights and interests frequently conflict, requiring attorneys to advocate zealously for their client’s position through litigation. Ultimately, it is the judge, after hearing the litigation of all parties, who determines what serves the best interests of the child.

While out-of-court advocacy holds significant value, we must not underestimate the importance of effective litigation in open court. For every hearing—whether adjudication, disposition, review, or permanency—attorneys must be prepared to litigate for their client’s desired outcomes. These outcomes may include preferred placement, appropriate services, acknowledgment of progress, changes to the permanency plan, or reunification. Effective litigation demands a strong theory of the case, supported by available evidence, to frame compelling arguments. When appropriate, attorneys should be ready to call witnesses and conduct direct and cross-examinations during hearings such as adjudication, disposition, and permanency (yes, permanency, see 10A O.S. 1-4-811(A)(4)) ensuring the court understands how their client’s position aligns with the best interests of the child—whether the client is the parent or the child.

Even when calling witnesses is not feasible or permitted, attorneys must advocate for their client’s position in open court. This involves presenting evidence and delivering well-crafted arguments to demonstrate how the client’s position supports the children’s best interests. We are all aware that the Rules of Evidence do not apply to most child welfare hearings. Without these rules, the State and DHS have excelled at presenting the information they wish the court to consider when making interlocutory orders that significantly affect clients’ rights—such as placement, visitation, or changes to the permanency plan. The courts frequently rely on a single source of information, much of which goes unchallenged. We must remember the reports of the Department are not gospel and when information is incorrect, we must litigate the “facts” presented when they are presented. This is especially important given the recent use of unchallenged DHS reports as evidence against parents in termination trials.

As litigators, we must ensure the court hears more than one perspective. We cannot cede control of family outcomes to the State or the Department by failing to challenge their narrative. Instead, we must adopt respectful and effective strategies to keep the court informed of evidence supporting our clients’ positions. This may include preparing and submitting our own client-focused court reports, sharing text conversations with specialists and service providers, presenting emails documenting client progress, introducing reports from service providers, or even arranging for client testimony. By leveraging the lack of strict evidentiary rules, attorneys can provide the court with comprehensive information to refute the Department’s claims, correct misrepresentations, and demonstrate how their client’s position serves the children’s best interests.

In child welfare litigation, the role of the attorney as a litigator is indispensable. Should you need any support in your litigation, reach out to your managing attorneys and check out our Practice Resources by registering at https://www.probono.net/ok/pdt/join/ and email Kim Rebsamen (kim.rebsamen@laok.org) to be granted access.

Practice Tip

PRACTICE TIP : STATE LAW AND DHS POLICY BOTH REQUIRE WRITTEN INDIVIDUALIZED SERVICE PLANS FOR CHILDREN

Pursuant to 10A O.S. §1-4-704 the Department of Human Services or licensed child-placing agency shall prepare and maintain a written individualized service plan for any child that has been adjudicated to being a deprived child. The following are the highlights of 10A O.S. §1-4-704 as it pertains to the child’s ISP.

The ISP shall be based on a comprehensive assessment and evaluation of the child and family and shall be developed with the participation of the parent(s), the attorney for the child, the GAL (if any), the child’s tribe, and the child, if appropriate. The health and safety of the child shall be the paramount consideration in the development of the plan. The ISP shall be furnished to the court within thirty (30) days after the child’s adjudication and shall be made available to counsel for the parties and any applicable tribe. When approved by the Court, the ISP shall be incorporated and made a part of the dispositional order of the Court.

Every ISP shall be individualized and specific to each child. It shall be measurable, realistic, and consistent with the requirements of other Court orders. The child’s ISP shall include but is not limited to:

Identification of the specific services to be provided to the child including educational, vocational educational, medical, drug or alcohol abuse treatment, counseling, or other treatment services.
A schedule of the frequency of services and the means by which delivery of the services will be assured or, as necessary, the proposed means by which support services or other assistance will be provided to enable the child to obtain the services.
The name of the social worker assigned to the case.
A projected date for the completion of the ISP.
Performance criteria that will measure the progress of the child toward completion of the ISP including time frames for achieving objectives and addressing the identified problems.
The name and business address of the attorney representing the child.
The permanency plan for the child, the reason for the selection of that plan and a description of the steps being taken by DHS to finalize that plan.

If the child is placed outside the home, the ISP shall further provide:

The sequence and time frame for services to be provided to the child, and if the child is placed in foster care, the foster parent(s), to facilitate the child’s return home or to another permanent placement.
A description of the child’s placement and explanation about whether it is the least restrictive placement available and in as close proximity as possible to the home of the child’s parent(s) when the case plan is reunification, and how the placement is consistent with the best interests and special needs of the child.
A description of any services or resources that were requested by the child or the child’s parent(s) since the date of the child’s placement, and whether those services or resources were provided, and if not, the basis for the denial of the services or resources.
Efforts made by the child’s parent and DHS to enable the child to return home.
A plan and schedule for regular and frequent visitation for the child and the child’s parent(s) and siblings, unless the Court has determined that visitation, even if supervised, would be harmful to the child.
A plan for ensuring the educational stability of the child including:
- Assurances that the child’s placement considers the appropriateness of the current educational setting and the proximity to the school in which the child was enrolled at the time of placement, and
- Where appropriate, an assurance that DHS has coordinated with appropriate local educational agencies to ensure that the child remains in the school in which the child was enrolled at the time of placement, or
- If remaining in the school in which the client was enrolled at the time of placement is not in the child’s best interests, assurances by DHS and the local educational agencies to provide immediate and appropriate enrollment in a new school with all the child’s educational records provided to the school.
A description of the transition planning for a successful adulthood for a child fourteen (14) or older that includes how the following objectives will be met:
- Educational, vocational, or employment planning
- Health care planning and medical coverage
- Transportation including, where appropriate, assisting the child in obtaining a driver’s license
- Money management
- Planning for housing
- Social and recreational skills
- Establishing and maintaining connections with the child’s family and community.
For a child in placement due solely or in part to the child’s behavioral health or medical health issues, diagnostic and assessment information, specific services relating to meeting the child’s applicable behavioral health and medical care needs, and desired treatment outcomes.

DHS Policy 340:75-6-40.1 Child’s Individualized Service Plan essentially mirrors 10A O.S. §1-4-704 and contains the information herein. It further states that Forms 04Kl005E, Child’s Individualized Service Plan (ISP); 04Kl012E, Individualized Service Plan (ISP); 04Kl004E, Placement Provider Information; and 04Kl014E, Individualized Service Plan (ISP) Progress Report, are the components of the case plan that comprise the child’s ISP.

November Case Summaries

Court of Civil Appeals – appeal from Payne County:

In Re M.A.R. – Mother asserted her right to a jury trial. She had notice of the hearing but failed to appear timely. Her counsel was present and called the hallway without a response. The trial judge dismissed the jury pool and converted the termination hearing to a nonjury trial. Mother appeared late. COCA found Mother’s tardiness did not expressly waive her right to a jury trial, particularly given that the court failed to make a determination about whether or not Mother’s late arrival was without good cause. The court abused its discretion in converting the jury trial and the case was remanded.

Court of Civil Appeals – appeal from Oklahoma County

In Re K.J., K.J., T.J., and T.J. – Mother alleged the state failed to present sufficient evidence to terminate her parental rights, the trial court erred by not providing her with services, and the trial court was biased. Mother was terminated based on 10A O.S. 1-4-904 for shocking and heinous abuse and neglect. Essentially her argument was that the state did not present evidence regarding all the kinds of shocking and heinous abuse or neglect listed (such as sexual abuse) and thus did not meet the criteria to be able to immediately terminate her rights without first providing her with reasonable efforts. COCA found that to terminate based on 10A O.S. 1-4-904 the state need only prove one of the several kinds of shocking and heinous abuse or neglect, not all of them. Further, the fact that the trial court checked the box indicating that reasonable efforts had been made was not reversible error given that reasonable efforts were not required to be made pursuant to 10A O.S. 1-4-904. As to the trial court bias argument, COCA instructed that the proper procedure for asserting trial court bias is to seek removal of the trial judge through the disqualification procedure outlined in Rule 15 or if bias only becomes apparent at the hearing, then the proper action is to object and move for a mistrial. Because Mother did neither of these things, she did not properly preserve the issue of the trial court’s bias for appeal.

DSW Corner

Trauma-Informed Practice, Katy Fortune

One of the fundamentals of quality legal representation is engaging in trauma-informed practice. Being trauma informed means understanding the pervasive nature of individual, generational, historical, racial, and systemic trauma and the impact it has on a person’s mental, emotional, and physical functioning. Applying a trauma-informed lens to your practice means asking “What happened to you?” rather than “What’s wrong with you?” in client interactions. It also means recognizing and reflecting on how your view of yourself and the world influences your interpretation of the things that happen to you and others, as well as your relationships and interactions with them. Being trauma informed avoids re-traumatizing clients and promotes healing and recovery, which increases client engagement and collaboration.

Table of Contents

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Director’s Corner

Practice Tip

November Case Summaries

DSW Corner