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(Revised 11/1/10 ML #3249)
Every child in foster care must have a “permanency hearing” within 12 months of the child/youth entry to foster care or continuing in foster care following a previous permanency hearing. The hearing must be held in a juvenile court or tribal court of competent jurisdiction (these replace the former dispositional hearings), or as an option, by the Division of Juvenile Services (DJS) for youth under its custody as a placement hearing under N.D.C.C. § 27-21.
A judicial determination that the agency has made reasonable efforts to finalize the permanency plan that is in effect (whether the plan is reunification, adoption, legal guardianship, placement with a fit and willing relative, or placement in another planned permanent living arrangement) within twelve months of the date the child is considered to have entered foster care, and at least once every twelve months thereafter while the child is in foster care. The requirement for subsequent permanency hearings applies to all children, including children placed in a permanent foster home or a preadoptive home.
In addition, a permanency hearing in the court or DJS must be conducted within thirty (30) days after a court determines that reasonable efforts are not required because:
Certain felonies have been committed against the child or another Child of the parent,
The parent has previously had parental rights to another child involuntarily terminated, or
When “aggravated circumstances” are present, as specified and defined by state law.
The regulations repeat the suggested federal statutory language for aggravated circumstances: abandonment, torture, chronic abuse, and sexual abuse.
The hearing shall determine the court-approved permanency plan for the child that determines, if applicable, when:
The child will be returned to the parent;
The child will be placed with a relative;
The child will be placed with a legal guardian;
The legal custodian (or State) will petition for termination of parental rights;
The child will be placed for adoption; or
The child will be placed in another planned permanent living arrangement. This applies in cases where the legal custodian has documented to the court a compelling reason for determining that it would not be in the best interests of the child to return home, be referred for termination of parental rights, or be placed for adoption with a fit and willing relative or with a legal guardian.
The hearing shall also determine:
Whether and, if applicable, to place siblings in the same foster care, relative, guardianship, or adoptive placement, unless it is determined that the joint placement would be contrary to the safety or well-being of any of the siblings.
Whether and, if applicable, in the case of siblings removed from their home who are not jointly placed, to provide for frequent visitation or other ongoing interaction between the siblings, unless it is determined to be contrary to the safety or well-being of any of the siblings.
Whether an out-of-state placement continues to be appropriate and in the best interest of the child; and
In the case of a child who has reached age 16, the services needed to assist the child to make the transition from foster care to independent living.
Federal Regulations changed effective March 27, 2000, related to children in long-term care with a specified caregiver. It is no longer acceptable for a court to name a specific foster home in the court order. Placement and care responsibilities must rest with the agency, or foster care payment cannot be made. The requirement for 12-month permanency hearings (formerly dispositional hearings), now applies to ALL children in foster care.
Paper reviews, ex parte hearings, agreed orders, or other actions or hearings which are not open to the participation of the parents of the child, the child (if of appropriate age), and the foster parents or preadoptive parent (if any) are not permanency hearings.
Continued Court Orders:
When findings of reasonable efforts to finalize the child's permanent plan are negative, insufficient or missing, foster care payments cannot be made until there is a positive finding. Continuances of the permanency hearing date and extension of the current court order which may delay the 'finding' of the permanency hearing until after the twelfth month will not meet the requirements of IV-E reimbursability. The required finding must be made every 12 months while the child is in care from the time the child is considered to have entered foster care. Foster care payments will terminate on the last day of the calendar month in which the findings were due. Once permanency findings are issued by the court, payments may be reinstated back to the first day of the calendar month in which the findings are made.