Commissioner Thurman W. Lowans1

Chapter Sections

§1 Purpose Statement

Except for children whose cases are reviewed by a citizen review board under RCW Chapter 13.70, and except for dependency guardianships under RCW 13.34.235, the status of all children found to be dependent must be reviewed by the court at least every six months.2

At all review hearings, the court is required to make findings as to compliance and progress concerning the parents, the child, and the supervising agency with respect to the services and case plan. The continued placement of the child, visitation, identification, and availability of reasonable and necessary services, medical and dental care for the child, and educational services for the child are but a few of the issues which may be addressed at the review hearing. Upon leaving a review hearing, the parties should have a clear understanding as to their compliance and progress, or lack thereof, as well as the direction of efforts to be made prior to the next scheduled review hearing.

§2 Timing

A review hearing must be conducted by the court at least every six months from the beginning date of the placement episode or from the date the dependency was established, whichever is first.3 The purpose of a review hearing is to review the progress of the parties and to determine whether court supervision should continue. It is important to note that following the establishment of a dependency, a case may not be dismissed unless the child has been returned home for at least six months.4 There is nothing in the provisions of RCW Chapter 13.34 which precludes the court from scheduling review hearings on a schedule more frequently than every six months, and often the facts and circumstances of a given case will so warrant.

Uniquely, Washington State has dependency guardianships (RCW 13.34.232) which are not subject to the six month review requirements of other dependencies, unless otherwise ordered by the court.5 Although a six month review hearing is not required for a dependency guardianship, good practice would direct a periodic review as deemed appropriate by the court to ensure the continued safety and viability of the guardianship.

§3 Ninety Day Review Requirement

The initial court review must be an in-court review within six months from the beginning of the placement episode or no more than 90 days from the entry of the disposition order, whichever comes first.6 The initial review may be designated as a permanent planning hearing when necessary to meet the time frames of RCW 13.34.145(1)(a) or RCW 13.34.134. The court has the authority to schedule review hearings more frequently than every six months, which may often be appropriate, depending on the facts and circumstances of the case. Generally speaking, completion of all services ordered at the disposition hearing within the first 90 days is impossible. Arguably, the 90-day review hearing is a “report card” concerning compliance and progress as to parents, the child, and the supervising agency, as well as a basis for further refinement or modification of services as needed. The 90 Day Review mark is in reality more generally at six months or more from the date of removal, and a thorough evaluation of services, compliance and progress is both necessary and appropriate.

§4 Parties Present

All dependency hearings shall be public, unless the judge finds that it is in the best interests of the child to exclude the public.7 Either parent, the child’s attorney or the Guardian ad Litem (GAL)/Court-Appointed Special Advocate (CASA) may move the court to exclude the public. The Department of Social and Health Services (DSHS), however, may not seek to exclude the public.

Any party has the right to be heard at the review hearing.8 Geography and other logistics may dictate many practical considerations in conducting a review hearing. Consequently, parents and others may appear by telephone, particularly when they are out of state or incarcerated. The dependency courtroom should always have a speaker phone with the technical ability to have multiple parties on the line during the hearing. Local Court Rules should not preclude a litigant’s right to be heard. “The fundamental requirement of due process is the right to be heard at a meaningful time and in a meaningful manner. [citations omitted]”9

Persons Who Should Always Be Present:

  • Judge or Court Commissioner
  • Parents, including putative fathers, whose rights have not been terminated
  • Custodial Adults and Relatives with legal standing
  • Assigned Caseworker
  • Agency Attorney
  • Attorney or Attorneys for Parent(s)
  • GAL/CASA
  • Attorney for Child (if appointed)
  • Tribal Representative if it is an ICWA case

Persons Who May Also Be Needed:

  • Age appropriate children10
  • Extended family members and relatives
  • Foster Parents – Relative placement11
  • An Interpreter
  • Judicial case management staff
  • Therapists, Counselors, and other service providers
  • Domestic Violence Advocate
  • Adult or Juvenile probation or parole officer
  • Law Enforcement Officers
  • Security personnel
  • Other witnesses as may be identified

§5 Notice to Parties

All parties must be given notice of the review hearing by any means reasonably certain of notifying the party, including but not limited to, notice in open court, mail, personal service, telephone, and telegraph.12 All parties have the right to be present and heard at the review hearing.8

Notice of a review hearing concerning a child who has been found to be dependent and removed from the parental home must include an advisement that a petition to terminate the parent and child relationship may be filed.8

§6 Notice to Foster Parent, Pre-Adoptive Parent, or Relative

DSHS is required to provide to the child’s foster parents, pre-adoptive parents, or other caregivers with notice of their right to be heard prior to each proceeding held with respect to a child in juvenile court. The rights to notice and to be heard apply only to persons with whom the child has been placed by DSHS and who are providing care to the child at the time of the hearing. Such persons are not granted party status solely by reason of the right of notice and to be heard.13

Information from such caregivers may prove highly valuable to the court in considering issues such as visitation, health care, and educational issues concerning a child. If they appear in court, they should be acknowledged and invited to provide any information they may have. If logistics or other events preclude a personal appearance, the caregivers should be encouraged to participate telephonically if possible or to submit a written update to the court.

§7 Findings

The court shall make findings concerning both compliance and progress by the parties concerning services, moving forward towards permanence and whether or not reasonable efforts are being made under the plan. Note that in cases involving an Indian Child, the provisions of the Indian Child Welfare Act (ICWA) and the Washington State Indian Child Welfare Act (WSICWA) apply. Both statutes require active efforts rather than reasonable efforts, and active efforts are further defined within WSICWA.14

DSHS is required to conduct monthly visits with children and caregivers unless the child’s placement is being supervised under a contract with a private agency accredited by a national child welfare accrediting entity. In that case, the private agency is required, within existing resources, to conduct the monthly visits with the child and caregiver and provide DSHS with a written report of the visits within 15 days of their occurrence. In cases where the monthly visits required are being conducted by a private agency, DSHS must conduct a face-to-face health and safety visit with the child at least once every 90 days.15

§8 Review Order When the Child is Returned Home

A child shall not be returned home unless the court finds that the reason for removal per RCW 13.34.130 no longer exists.16 The inquiry by the court, in short, is whether the child will be safe and whether circumstances have become sufficiently stable to maintain safety and mitigate or cure any damage suffered. DSHS will not make a recommendation to return a child home without first having conducted a child protective team (CPT) staffing. The decision to return the child is within the sound discretion of the court after consideration of all facts and circumstances presented, including the CPT recommendation. However, the court need not wait for a CPT recommendation if the court determines that the child should be returned home.

Prior to a child returning home, DSHS must complete home and background checks on all adults residing in the home and identify any persons who may act as a caregiver to determine if such persons are themselves in need of any services so as to ensure the safety of the child.17

In any review hearing, whether the child is returned or not, the court is required to make findings as to compliance and progress by the parents, the child, and the supervising agency with the case plan and services specified in the plan. The court is also required to review the case plan and its services and make adjustments and modifications where appropriate given the facts and circumstances presented at the review hearing. (See § 19.9 below.) Services should be tailored to meet each individual parent’s needs in a timely manner.18

Clearly, the return home of a child is always conditioned upon the continued safety and security of the child. RCW 13.34.138(3)(a) is clear that any return home of a child is expressly contingent upon the following:

  • Compliance by the parents with court orders relating to care and supervision of the child, including compliance with the case plan; and
  • Continued participation of the parents, if applicable, in available substance abuse or mental health treatment if substance abuse or mental illness was a contributing factor to the removal of the child.

A failure to comply and make progress with the agency case plan, including services for parents and the child, may result in the removal of the child.19 RCW 13.34.138(3)(b) states that a child may be removed from the home for reason of any of the following:

  • Noncompliance by the parents with the agency case plan or court order;
  • The parent’s inability, unwillingness, or failure to participate in available services or treatment for themselves or the child, including substance abuse treatment if parent’s substance abuse was a contributing factor to the abuse or neglect; or
  • The failure of the parents to successfully and substantially complete available services or treatment for themselves or the child, including substance abuse treatment if a parent’s substance abuse was a contributing factor to the abuse or neglect.

If a dependent child is returned home and that child is later removed from the home (i.e., a second removal takes place), the court must conduct a review hearing within 30 days from the date of removal to determine whether the permanency plan should be changed, a termination petition should be filed, or other action is warranted. The best interests of the child shall be the court’s primary consideration.20 It should be noted that the information available at such review hearings is often not substantially greater than was available when the dependent child was initially removed from the home, and therefore the scheduling of an early permanent plan hearing is appropriate.

§9 Review Order When the Child is Not Returned Home

 A wide range of issues may arise at a review hearing, irrespective of whether the child is returned home or not. In addition to findings as to compliance and progress by the parents, the child, and the supervising agency, considerable time and energy may be expended to review, clarify, or modify services and visitation. It is important to afford all parties, including the GAL/CASA, foster parents, relative placements, and service providers, the opportunity to be heard.

If a child is not returned at the review hearing, the court is required to establish in writing the projected date by which the child will be returned home or some other permanent plan of care for the child will be implemented, and the following:

  1. Whether reasonable efforts have been made to provide services to the family and eliminate the need for placement of the child;
  2. Whether there has been compliance with the case plan by the child, the child’s parents, and the agency supervising placement;
  3. Whether progress has been made toward correcting the problems that necessitated placement out of the home;
  4. Whether the services set forth in the plan and the responsibilities of the parties needs to be clarified or modified due to additional information or changed circumstances;
  5. Whether there is a continuing need for placement;
  6. Whether the child is in an appropriate placement which adequately meets all his or her physical, emotional, and educational needs;
  7. Whether preference has been given to placement with the child’s relatives;
  8. Whether both in-state and, where appropriate, out-of-state placements have been considered;
  9. Whether the parents have visited the child and any reasons why visitation has not occurred or has been infrequent;
  10. Whether the terms of visitation need to be modified;
  11. Whether the long term permanent plan for the child as approved by the court remains the best plan for the child; and
  12. Whether any additional court orders are needed to move the case forward toward permanency.

If a written review order is not prepared at the time of the review hearing, ensure that one shall be presented on or before a date certain. Also be sure to set the next review or permanent planning hearing within at least six months and possibly sooner, depending on the facts of the case.

§10 Court-Ordered Termination Petition

The decision to order DSHS to file a petition for termination of the parent-child relationship is normally made at the time of a permanent planning hearing following entry of a judgment by clear, cogent, and convincing evidence that the permanent plan for the child requires termination of parental rights. When ordering that a petition for termination be filed, it is good practice to specify a date by which such a petition is to be filed.

While RCW 13.34.138(2)(d) grants the court authority to order DSHS to file a petition for termination at the time of a review hearing, the criteria for issuing such an order are not stated. Presumably such an order would arise from a case involving aggravated circumstances as stated in RCW 13.34.132. DSHS is not required to develop a plan for services for the parent(s) or to provide services to the parent(s) if the court orders a termination petition to be filed.21 Please refer to Chapter 18, Section 17, concerning aggravated circumstances.

§11 Extended Jurisdiction and Services for Children in Foster Care22

A dependent child may remain subject to the court’s jurisdiction beyond his or her 18th birthday if he or she is eligible23 and elects to receive extended foster care services authorized by RCW 74.13.031. Such jurisdiction may extend until the youth reaches the age of 21. The statute expressly provides that a youth 18 years or older shall not be deemed a child for any other purpose.

When a dependent child reaches the age of 18, the court shall postpone the dismissal of the dependency proceeding for six months if the youth is enrolled in a secondary education program or its equivalency on his or her 18th birthday. At the end of the six month period, the court shall dismiss the dependency if the youth has not requested extended foster care from DSHS. Parents are to be dismissed from the proceeding when the youth reaches age 18 as the youth is now otherwise an adult. Presumably, the GAL should also be dismissed as well on this basis. The court shall appoint an attorney for the youth, and review hearings must be conducted every six months concerning the continued safety, eligibility and overall progress of the youth in transitioning to full independence. The dependency is dismissed upon request of the youth or when the youth is no longer eligible for extended foster care services (i.e., the child turns 21 or ceases his or her enrollment in secondary education or its equivalent).24

Download this chapter:  Chapter 19 – Review Hearing

ENDNOTES

  1. Commissioner Thurman W. Lowans was appointed to the Kitsap County Superior Court in 1993 and is responsible for the Paternity calendar, Dependency calendar, Family Law motions calendar, Mental Commitment calendar, Domestic Violence calendar, Adoption calendar, Civil Contempt calendar, and the Ex Parte calendar. He established the position of Courthouse Facilitator for the Superior Court in 1993, and in 2001 he established a juvenile diversion program known as Youth Court where teens serve as judge, advocate, and jury in diversion cases. Commissioner Lowans graduated cum laude from Dartmouth College in 1972 and received his J.D. from Boston University School of Law in 1975. In 1996 he retired as a Commander with the JAG Corps of the U.S. Navy following 22 years of service in the Reserves. Commissioner Lowans was in private practice in Bremerton with Soriano, Soriano and Lowans for 15 years before his appointment to the Bench. His trial practice included felony defense, juvenile offenders and dependencies, domestic relations, real estate and probate. He served as Land Hearing Examiner for Kitsap County in 1992–1993 and as President of the Kitsap County Bar Association in 1993. Commissioner Lowans served on the Faculty of the Washington State Judicial College (2002–2007 and 2009–2011) as instructor concerning Dependencies, and served as the judicial representative to the Board of Directors of Washington State Court-Appointed Special Advocates (2002–2005).
  2. See RCW 13.34.138.
  3. RCW 13.34.138(1). See also RCW 13.34.145.
  4. RCW 13.34.145(7).
  5. RCW 13.34.235.
  6. RCW 13.34.138(1)(a).
  7. RCW 13.34.115(1).
  8. JuCR 3.9.
  9. In re the Dependency of R.L. and I.L., 123 Wn. App. 215, 222, 98 P.3d 75 (2004).
  10. There is no hard and fast age specified by statute (although during the 2008 session the Legislature considered making it mandatory). Each case is unique, and the court must make a judgment call.
  11. This point indicates foster parents and relatives with whom the child is temporarily placed.
  12. JuCR 3.9; JuCR 11.2.
  13. RCW 13.34.096; RCW 74.13.280.
  14. 25 U.S.C. § 1912(d); E.S.S.B. 5656, 62nd Leg., Reg. Sess. (Wash. 2011); Laws of 2011, ch. 309.
  15. E.S.S.B. 6792, 60th Leg., Reg. Sess. (Wash. 2008).
  16. RCW 13.34.138(2)(a).
  17. RCW 13.34.138(2)(b).
  18. In re S.J., No. 26179-4-III, (Wn. App. Aug. 2, 2011).
  19. Safe and adequate housing is often at the center of dependencies, and in cases in which a lack of adequate housing is the primary factor in the out-of-home placement of the child, the court has the authority to order DSHS to provide housing assistance in some form to the child and family. The nature of such services is within the discretion of DSHS, subject to findings by the court as to their reasonableness and adequacy. Washington State Coalition for the Homeless v. DSHS, 133 Wn.2d 894, 925, 949 P.2d 1291 (1997). Housing resources within a community will obviously vary widely across the state. Arguably, knowledge of those resources and being able to facilitate access to such resources is reasonable. The Legislature has responded to the Supreme Court’s mandate concerning housing by (1) limiting the court’s authority to cases in which homelessness or lack of adequate and safe housing is the primary reason for out-of-home placement, and (2) subjecting that authority to the availability of funds appropriated for this specific purpose. RCW 13.34.138(4).
  20. RCW 13.34.138(3)(c).
  21. RCW 13.34.136(2)(c).
  22. See generally S.S.H.B. 1128, sec. 1, 62nd Leg., Reg. Sess. (Wash. 2011); Laws of 2011, ch. 330, sec. 1.
  23. The youth remains eligible for these services until the age of 21 and while the youth is enrolled in secondary education or its equivalent, post secondary education, vocational education, program or activity designed to promote or remove barriers to employment, or engagement by the youth in employment for 80 hours or more per month. S.S.H.B. 1128, sec. 8.
  24. S.S.H.B. 1128, sec. 7.