Commissioner Thurman W. Lowans1

Chapter Sections

§1 Purpose of Statement

Similar to the shelter care process, safety of the child remains a primary focus at the disposition hearing. The disposition order directs a program designed to alleviate danger to the child, to mitigate or cure any damage the child has already suffered, and to aid the parents so that the child will not be endangered in the future.2 The disposition order should direct the following: a service plan for parents and the child, the placement of the child, the health and education of the child, a visitation plan for child and his or her parent(s) and for the child and his or her siblings, and eventually a permanent plan for the child.

The disposition hearing effectively sets benchmarks and expectations for the parties as they move forward into services. It is important that parents understand the services in the plan as well as the time requirements of the plan. The first 90-day review hearing following disposition will provide a type of “report card” on compliance and progress issues, as well as serve to further refine services as needed.

§2 Timing

The disposition hearing must be held immediately after the fact-finding hearing if dependency is established; however it may be continued to a date certain for up to 14 days.3 For good cause, a period longer than 14 days may be set.

There is an inherent conflict between the timing requirement for a disposition hearing immediately or within 14 days and RCW 13.34.120(1) which requires 10 working days advance notice by mail to parents and counsel of the social study and proposed individual service and safety plan (ISSP). If a disagreement concerning the ISSP arises, parents and counsel shall submit their objections in writing at least 24 hours before the hearing and have the right to submit oral arguments at the time of the hearing.4

The Guardian ad Litem (GAL)/Court-Appointed Special Advocate (CASA) shall file their report with both the court and the parties prior to the hearing in accordance with local court rules (which do not specify a time component). The rules specifying time deadlines are, at times, in conflict.

It is important that all parties make themselves aware of the positions and requests of others and that all parties be afforded a meaningful opportunity to be heard on the dispositional plan.

§3 Parties Present

All dependency hearings must be public, unless the judge finds that it is in the best interests of the child to exclude the public.5 Either parent, the child’s attorney, or the GAL/CASA may move the court to exclude the public. It is important to note that the Department of Social and Health Services

(DSHS) may not seek to exclude the public.

Any party shall have the right to be heard at the disposition hearing.6 Geography and other logistics may dictate many practical considerations in conducting a disposition 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.

RCW 13.34.110(3) provides that the parties need not appear at the disposition hearing if all parties, counsel, and the GAL/CASA are in agreement. However, given the gravity of the issues present at a disposition hearing and the schedule of services and hearings which will result, it is difficult to imagine conducting such a hearing without substantial appearance by counsel and other parties.

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
  • Security personnel

Persons Who May Also Be Needed:

  • Age appropriate children7
  • Extended family members and relatives
  • Foster Parents – Relative placement8
  • 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
  • Other witnesses as may be identified

§4 Consideration of Social Studies

The rules of evidence do not apply at the disposition hearing, and the court must consider the social file, social study, GAL/ CASA report, reports filed by a party, evidence produced at the fact finding, and the ISSP.9 Any social file, social study, or predisposition study shall be made available for inspection by a party or their attorney at a reasonable time prior to the disposition hearing.10

Stipulated or agreed disposition orders are not binding on the court, but rather are subject to approval by the court which must receive and review a social study and consider whether the order is consistent with the allegations of the dependency and the problems that necessitated the child’s placement out-of-home.11

§5 DSHS’s Individual Service and Safety Plan (ISSP)

DSHS must prepare and then mail its proposed ISSP to the parent(s) and their attorney(s) at least 10 working days before the disposition hearing. The ISSP must be in writing or in a form understandable to the parents or custodians. If a parent disagrees with the ISSP, they shall submit their alternative plan in writing or signed statement at least 24 hours before the disposition hearing. Oral arguments from the parent(s) are permitted at the time of the disposition hearing.12

Reports of the GAL/CASA are also to be filed prior to the disposition hearing in accordance with court rules. It is probable that no such written report will have been made at the time of disposition as there will have been little if any time in which the GAL/CASA can review and respond to the DSHS’s ISSP and the facts presented. Best practice would indicate written reports from all parties, but a disposition hearing is often the subject of considerable oral supplementation to the reports and recommendations with opportunity for all to be heard and to meaningfully respond.

If the DSHS’s ISSP is not filed and submitted in a timely manner, it shall be filed and distributed within 30 days of the disposition hearing.13 It is, however, difficult to envision how a meaningful and substantive disposition hearing could be conducted without benefit of an ISSP. The importance of the ISSP is to afford all parties written notice and opportunity to be heard on services for the ensuing 90 days—services which will form the basis for future permanent planning decisions and hopefully are clearly stated and understood.14 Services should be tailored to meet each individual parent’s needs in a timely manner. Dispositional hearings are often continued because of the absence of an ISSP. Second continuances are rare, and such an event could result in the imposition of terms against DSHS and the caseworker.

§6 Placement with a Parent or Parents

RCW 13.34.130(1)(a) provides for a disposition “other than removal of the child” from the home if the disposition includes a program designed to alleviate immediate danger to the child, mitigate or cure damage already suffered, and aid the parents so that the child will not be endangered in the future. Safety for the child remains the primary factor and may nonetheless require placement outside the home if the health, safety, or welfare of the child is jeopardized in the home. The court should be aware that when a child is returned home with a parent and future facts demand the second removal of the child, immediate and specific actions are authorized so as to effect prompt permanency for the child.

A parent’s criminal history does not automatically disqualify that parent from placement, but it is relevant as to placement decisions concerning parental fitness and the child’s welfare.15 Placement with a parent who has a criminal history and resides outside of Washington State may be problematic, as their criminal history may result in a disqualification for placement under that state’s Interstate Compact on the Placement of Children (ICPC) regulations. See Chapter 26 for more concerning ICPC.

§7 Reasonable Efforts

Before out-of-home placement may be ordered, the court must find that reasonable efforts have been made to prevent or eliminate the need for removal of the child from the child’s home and to make it possible for the child to return home. The services that have been provided to the child and the parent(s), guardian, or legal custodian should be specified. The court must also find that preventative services have been offered or provided and have failed to prevent the need for out-of-home placement, unless the health, safety, and welfare of the child cannot be protected adequately in the home, and

  1. There is no parent or guardian available to care for such child;
  2. The parent, guardian, or legal custodian is not willing to take custody of the child; or
  3. The court finds, by clear, cogent, and convincing evidence, a manifest danger exists that the child will suffer serious abuse or neglect if the child is not removed from the home and an order under RCW 26.44.063 would not protect the child from danger.16

In cases in which aggravated circumstances have been established by clear, cogent, and convincing evidence, reasonable efforts to unify the family are not required unless such efforts are determined to be in the best interests of the child.17 If reasonable efforts are not required, the court shall set a permanency planning hearing within 30 days of the disposition hearing.18

Note that in cases involving an Indian child, the provisions of the Indian Child Welfare Act (ICWA) apply. ICWA cases require active efforts rather than reasonable efforts.19 The status of whether or not a child is in fact an Indian child for purposes of ICWA may, for practical reasons, take considerable time to resolve. See Chapter 27 for more concerning ICWA.

§8 Placement of the Child in the Disposition Order

In the event reunifying the family is not in the best interests of the child, RCW 13.34.130 directs placement of a child in either an in-home dependency or an out-of-home placement during the dependency. Out-of-home placement may be with a relative, a foster family or group home, or the home of a suitable person if the child or family has a preexisting relationship with the person (also known as “fictive kin”).20A criminal history background check is required before the child is placed with an unlicensed person; that person must also be suitable and competent to provide care for the child.21 Parental authority is appropriate in areas that are not connected with abuse or neglect which resulted in the dependency. Balancing the inherent intrusion into the lives of foster care families and the goal of maintaining parental authority where appropriate, absent good cause, DSHS shall follow the wishes of the natural parent concerning out-of-home placement of the child.22

In matching children to foster homes, the court should consider family constellation, sibling relationships, ethnicity, and religious practice or preference. Contact between the foster parent and the birth parents is to be encouraged, including assistance in understanding the needs of the child, participation in educational activities, and transportation for visitation.23 Candidly, however, the reality is often that there are very limited choices by reason of practical limitations in the supply of foster homes and the capacities of those homes. Additionally, safety of the child must be the paramount concern of the court.24

§9 Effect of Placement Outside the Home

An immediate consequence of out-of-home placement is the need to address visitation, both between parent and child and between siblings if they are in different placements. Considerable energy, resourcefulness, and innovativeness is often needed in addressing the challenges of providing appropriate visitation. Visitation between parent and child and between siblings is not a service capable of correcting parental deficiencies; rather, it is the right of the family, including the child and the parent.25 Maximum contact between parent and child and among siblings should be encouraged. Visitation shall not be limited as a sanction for a parent’s failure to comply with court orders or service. Visitation may only be limited or denied if deemed necessary to protect the child’s health, safety or welfare.

Whenever a child is placed in out-of-home care under the supervision of DSHS, DSHS must conduct a social study prior to such placement.26 Good practice dictates that out-of-home placement with unlicensed relatives or fictive kin should be accompanied by a supplemental order signed by the placement relative or fictive kin by which they agree and submit to the jurisdiction and authority of the court, including all future orders. Absent clear direction and guidance from the court, relatives may become vested in their own positions to the detriment of a child and/or one or both of the parents.

§10 Placement with Relative

Placement with a relative shall be given preference by the court.27 Persons related to the child are broadly defined under RCW 74.15.020(2)(a) as

  1. Any blood relative, including those of half-blood, first and second cousins, nephews, nieces, and persons of preceding generations prefixed with grand or great-grand;
  2. Stepfather, stepmother, stepbrother, or stepsister;
  3. A person who has legally adopted the child, as well as the natural or other legally adopted children of such persons, and other relatives of the adoptive parents;
  4. Spouses of any of the aforementioned relatives, even after marriage is terminated;
  5. Relatives of any of the aforementioned relatives; and
  6. Extended family members as defined by the law or custom of the Indian child’s tribe.

If there is insufficient information at the time of the disposition hearing upon which to base a placement determination with a relative, the court may direct DSHS to conduct a background investigation as provided in RCW Chapter 74.15 and to report the results to the court within 30 days. The court has the authority to make such relative placement without the background check if the relative appears otherwise suitable and competent to provide care and treatment, provided that the background check is provided as soon as possible after placement. Any placement with relatives is expressly contingent upon cooperation by the relative with the agency case plan and compliance with court orders related to contacts and any other conditions imposed by the court. Noncompliance with the case plan or court order is grounds for removal of the child from the relative’s home.28 Best practice would indicate that the court issue a separate or supplemental order concerning the relative placement; this order should include a recital that the relative submits to the jurisdiction and authority of the court, and the relative with whom the child is placed should sign and acknowledge the order.

§11 Unlicensed Placement Possibilities

Subject to review and approval by the court, DSHS has authority to place a child in the home of “another suitable person” if (a) the child or family have a preexisting relationship with that person; (b) that person has completed all required criminal history background checks; and (c) that person appears to be suitable and competent to provide care for the child.29 Placement with “fictive kin” shall only take place if the court finds that such placement is in the best interests of the child.

§12 American Indian Children

Foster care placement for an Indian Child is to be given preference as follows:

  • Relatives;
  • An Indian family or same tribe as the child;
  • An Indian family or a Washington Indian tribe of a similar culture to that Tribe; then
  • Any other family which can provide a suitable home for an Indian Child. Such suitability is to be determined through consultation with a local Indian Child Welfare Advisory Committee.30

As stated above, the status of whether or not a child is in fact an Indian Child for purposes of ICWA may, for practical reasons, take considerable time to resolve. However, “[t]he tribal determination that a child is a member or eligible for membership in that tribe is conclusive evidence that a child is an “Indian child” under the ICWA.”31 The timely and proper determination of the Indian status of a child is critical. If the child is an Indian Child for purposes of ICWA, active efforts are required as opposed to reasonable efforts.32 The Tribe involved may seek to exercise their right to intervene under 25 U.S.C. § 1911(c) and may even move to transfer the case to the jurisdiction of their tribal court under 25 U.S.C. § 1911(b). The burden of proof for termination of parental rights in an ICWA case is higher than the standard “beyond a reasonable doubt,” and dependency orders and final judgments of termination which fail to comply with the requirements of ICWA may be invalidated.33

In addition to the requirements of ICWA, there are additional requirements under the Washington State Indian Child Welfare Act (WSICWA).34 “Active efforts” are further defined under state statute to minimally include timely and diligent efforts to engage parents beyond simply providing referrals for services.35 “In any foster care placement or termination of parental rights proceedings [absent] a statutory or contractual duty to directly provide services…“active efforts” means a documented, concerted, and good faith effort to facilitate the parent’s or Indian custodian’s receipt of and engagement in services….”36 “An Indian tribe shall have exclusive jurisdiction over any child custody proceeding involving an Indian child who resides or is domiciled within the reservation of that tribe, unless the tribe has expressly declined to exercise its exclusive jurisdiction, or the state is exercising emergency jurisdiction” as defined by the statute.37

Consistent with ICWA, a written determination by an Indian tribe that a child is a member of or eligible for membership in that tribe, or is not a member or otherwise eligible, is deemed to be conclusive as to the Indian status of the child and that tribe.38

§13 Social Worker Immunity Regarding Placement Decisions

The state, DSHS, and its employees are not liable for civil damages resulting from any act or omission in the provision of services under this section, unless the act or omission constitutes gross negligence. RCW 13.34.215(14) does not impose any duty and shall not be construed to create a duty where none exists, nor does it create a cause of action against the state, DSHS, or its employees concerning the original termination.

Absolute Immunity: Social workers are not entitled to absolute immunity for foster care placement decisions.

Qualified Immunity: Social workers may be entitled to qualified immunity for foster care placement decisions if they are carrying out a statutory duty according to procedures dictated by statute and their superiors and are acting reasonably.

Quasi-Judicial Immunity: Social workers may not claim quasi-judicial immunity for actions taken before the issuance of a judicial order.39

§14 Foster Home Licensing

Agencies and DSHS cannot place a child in a home required to be licensed until the home is licensed.40 It is, however, ultimately the court’s responsibility to order placement in accordance with the statutory requirements.41

§15 Ability of a Parent to Pay for Placement

 Foster care is costly and the State is entitled to seek reimbursement through the payment of child support by the parent(s). Upon commencement of an action for dependency, the court may inquire into the ability of the parent(s) to pay child support and may order child support as set forth in RCW Chapter 26.19. All such child support orders shall be in compliance with the provisions of RCW 26.23.050.42 DSHS may also establish an administrative order of support through the Office of Support Enforcement.43

Orders of child support may be enforced through entry of judgment and enforcement upon the judgment according to law.44

§16 Parents of Unmarried Minor Parent Deemed Responsible

If a dependent child’s parent is an unmarried minor parent or pregnant minor applicant, then the parent(s) of the minor shall also be deemed a parent(s) of the dependent child. However, liability for child support only exists if such parent(s) is/are provided the opportunity for a hearing on their ability to provide support. Any child support order entered pursuant to this process shall be effective only until the child reaches 18 years of age.45 Such matters are often handled administratively rather than through the court process.

§17 Court-Ordered Termination Petition

Under very specific and limited circumstances, the court may order that DSHS file a petition for termination of the parent and child relationship during the disposition hearing. Those limited circumstances require that the court has (1) ordered removal of the child; (2) termination is recommended by DSHS; (3) the court finds that termination is in the best interests of the child; and (4) by clear, cogent, and convincing evidence the court finds aggravated circumstances exist.46

In finding aggravated circumstances by clear, cogent, and convincing evidence, the court shall consider one or more of the following:

  • Conviction of the parent of rape of the child in the 1st, 2nd, or 3rd Degree;
  • Conviction of the parent of criminal mistreatment of the child in the 1st or 2nd Degree;
  • Conviction of the parent of one of the following assault crimes when the child is the victim: Assault in the 1st or 2nd Degree or Assault of a Child in the 1st or 2nd Degree;
  • Conviction of the parent of murder, manslaughter, or homicide by abuse of the child’s other parent, sibling, or another child;
  • Conviction of the parent of attempting, soliciting, or conspiring to commit a crime as listed in (a), (b), (c), or (d) above;
  • A finding by the court that a parent is a sexually violent predator as defined in RCW 71.09.020;
  • Failure of the parent to complete available treatment ordered under this chapter or the equivalent laws of another state, where such failure has resulted in a prior termination of parental rights to another child and the parent has failed to effect significant change in the interim. In the case of a parent of an Indian Child as defined in the Indian Child Welfare Act, the court shall also consider tribal efforts to assist the parent in completing treatment and make it possible for the child to return home;
  • The child is an infant under three years of age and has been abandoned; and
  • Conviction of the parent, when a child has been born of the offense, of a sex offense under Chapter 9A.44 RCW or incest under RCW 9A.64.020.47

Note that each of the foregoing provisions with the exception of (d) provides for a link between the offense recited and the child of the dependency, as opposed to any child in general.

Download this chapter: Chapter 18 – Disposition 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. RCW 13.34.130(1)(a).
  3. See RCW 13.34.110(4).
  4. See RCW 13.34.120(1).
  5. RCW 13.34.115(1).
  6. JuCR 3.8(c).
  7. 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.
  8. This point indicates foster parents and relatives with whom the child is temporarily placed.
  9. See RCW 13.34.120(1).
  10. JuCR 3.8(c).
  11. RCW 13.34.110(2)(b).
  12. RCW 13.34.120(1). JuCR 3.8(c).
  13. JuCR 3.8(d).
  14. In re S.J., No. 26179-4-III, (Wn. App. Aug., 2, 2011).
  15. In re J.B.S., 123 Wn.2d 1, 863 P.2d 1344 (1993); In re A.C., 74 Wn. App. 271, 873 P.2d 535 (1994).
  16. RCW 13.34.130(2).
  17. RCW 13.34.132(4).
  18. RCW 13.34.134.
  19. 25 U.S.C. § 1912(d).
  20. The suitability of a person for out-of-home placement is a judgment call left to the decision of the court. See generally RCW 13.34.130(6).
  21. RCW 13.34.130(1)(b).
  22. RCW 13.34.130(1)(b).; RCW 13.34.260.
  23. RCW 13.34.260.
  24. RCW 13.34.020.
  25. See RCW 13.34.136(2)(b)(ii); In re T.L.G.,139 Wn. App. 1, 156 P.3d 222 (2007).
  26. RCW 74.13.065.
  27. RCW 13.34.130(2).
  28. RCW 13.34.130(6).
  29. RCW 13.34.130(1)(b)(iii).
  30. RCW 13.34.250.
  31. In re A.L.W., 108 Wn. App. 664, 672, 32 P.3d 297 (2001) (emphasis added).
  32. 25 U.S.C. § 1912(d).
  33. 25 U.S.C. § 1912(f ); 25 U.S.C. § 1914.
  34. E.S.S.B. 5656, 62nd Legis., Reg. Sess. (2011); Laws of 2011, ch. 309.
  35. E.S.S.B. 5656, sect. 4(1).
  36. E.S.S.B. 5656, sect. 4(1).(b).
  37. E.S.S.B. 5656, sect. 4(6).
  38. E.S.S.B. 5656, sect. 7(3).
  39. Babcock v. State, 116 Wn.2d 596, 809 P.2d 143 (1991).
  40. RCW 74.15.040.
  41. RCW 13.34.130.
  42. RCW 13.34.160(1).
  43. RCW 13.34.160(3).
  44. RCW 13.34.161.
  45. RCW 13.34.160(2).
  46. RCW 13.34.130(5); RCW 13.34.132.
  47. RCW 13.34.132.