Permanency planning means just what it says. It is the process of establishing a long term placement plan for the child. The idea behind permanency planning is that

Within one year of a child's removal from the home, the court must engage in a permanency planning hearing process -- unless the child has been returned to a parent⁽¹⁾. The permanency planning process is divided into two parts. The first part, called the "initial permanency hearing" is to determine if it is safe to return the child home. The second part called the "permanency hearing" is to determine what the permanent plan for that child will be.

I. INITIAL PERMANENCY HEARING
At the initial permanency hearing the court must make a threshold finding of whether or not the return of the child would create a substantial risk of harm to the child's physical, mental or emotional health or safety.⁽²⁾ The key to such a finding is if the parents have substantially improved the conditions that gave rise to the removal in the first instance.

Here is where the case plan comes in. Under the statute, the measure of the parent's abilities is the case plan. The permanency statute states that:
 

"The court shall consider the failure of the parent or guardian to comply with the terms of the case plan as evidence that return of the child would create a substantial risk of harm to the child."⁽³⁾

With that focus, five days before the initial permanency hearing, all parties must submit a progress report to the Court.⁽⁴⁾ The progress report must address:

(1) The parties' compliance with the dispositional orders;
(2) Efforts to accomplish the goals of the case plan;
(3) The factual basis for a permanency plan;
(4) The recommended placement;
(5) Time frames needed in which to accomplish the permanent plan
(6) Other issues required by the Court.

So it is our practice to always submit a permanency report. A sample report is included in the Appendix.

The hearing is conducted in the same manner as an adjudicatory hearing. The Rules of evidence, as used in the Juvenile Court, apply.

If the Court determines that it is unsafe to return the child then the court will:

1. Order the department to finalize a permanent plan.

2. Schedule a permanency hearing within one hundred twenty days after the initial permanency hearing to make a determination regarding the most appropriate final plan for the child.

II. FINAL PERMANENCY  HEARING
At the final permanency hearing, the Judge will determine a final plan for the child. The options are limited. The Court must order termination of parental rights, adoption, permanent guardianship pursuant to section 8-872 or some other permanent legal status.⁽⁷⁾ The only other available permanent status other than some form of institutional commitment is long term foster care. Under the Federal ASFA regulations, long term foster care can only be a permanent plan if the court finds extraordinary circumstances warrant that option.

In making the choices, the Judge must take a good hard look at three factors:

1. If the Judge is leaning towards severance, adoption or permanent guardianship, do the statutory grounds exist?
2. Has the state make reasonable efforts to institute the case plan?
3. What is in the child's best interests?

1. Severance
There are 10 grounds for terminating parental rights.⁽⁹⁾  The most commonly used ground are subdivision 7 -- what is called "time in care" and subdivision 8 relating to mental illness and substance abuse.

Time in care relate to the failure of the parent to remedy the underlying cause of the dependency by following the case plan. If the parent has wilfully failed or neglected to remedy the situation within 9 month or for whatever reason [mostly lack of capacity] has not remedied the situation with 15 months and prognosis is bad, then the parent's rights can be terminated.

The mental heath/substance abuse grounds is applicable where is the prospects for rehabilitation are so poor that there is no end in sight in the near future.

2. Permanent Guardianship
The basic situation in permanent guardianship is that the same hopeless lack of progress exists as in as severance but that it would not be in the child's best interest to terminate parental rights.⁽¹⁰⁾ Permanent Guardianship has the additional requirement that an appropriate guardian has been identified and is willing to serve.   In contrast, for a severance, there is no requirement that an adoptive family be in place.

B. Reasonable Efforts
Implicit in most of these grounds is that the state made reasonable efforts at reunification. Thus, in a permanency hearing, the conduct of CPS is often at issue. Did CPS make the services of the case plan available? Were the services reasonable and appropriate? Did CPS create unjustifiable obstacles?

Because of the reasonable [or diligent] efforts requirements, a permanency hearing often becomes the "Trial of CPS." After all, if the parents had actually been successful, they would probably have had the child returned at the initial permanency hearing.

If the parents have reached the point of litigating reasonable efforts at the permanency hearing, it is pretty much too late. Arguments and issues about reasonable efforts to implement appropriate services should have been made long before.

In addition to severance and guardianship reasons for considering reasonable efforts, the court needs to make reasonable efforts findings to meet the requirements of federal reimbursement of services. Thus, the Court:

"must also make a finding that the agency has made reasonable efforts to finalize a permanency plan. The permanency plan may be to reunify the family or secure the child a new permanent home. In other words, the regulations have consolidated these two reasonable effort findings into one. The finding is based on the agency's permanency plan at the time of the hearing, not on a prior plan the agency has abandoned."⁽¹¹⁾

III. TIME LIMITS
The Judge must order the permanent plan to be accomplished within a specified period of time.⁽¹²⁾ The time periods are short. If the Judge determines that the plan should be termination of parental rights or permanent guardianship, then the Judge must order that a motion to start a severance proceeding must be filed within 10 days and the first hearing on that motion scheduled within 30 days.⁽¹³⁾

This provision is designed to respond to the needlessly lengthy stays in foster care of so called "legal orphans" that were the underpinnings of ASFA.

Finally, if the Court orders severance, the dependency will stay in place until the child adopted or turns 18. If the court orders guardianship, the dependency will end upon the granting of the guardianship motion.

 
1. ARS § 8-861(B)

2. ARS § 8-861(B)
3. Id.
4. Rule 16.4(c) RPJC
5. ARS § 8-861(B)
6. ARS § 8-862(A)
7. ARS § 8-862(B)
8. ARS §§ 8-537 [severance] and 8-872 [guardianship]
9.

1. That the parent has abandoned the child.
2. That the parent has neglected or wilfully abused a child. This abuse includes serious physical or emotional injury or situations in which the parent knew or reasonably should have known that a person was abusing or neglecting a child.
3. That the parent is unable to discharge the parental responsibilities because of mental illness, mental deficiency or a history of chronic abuse of dangerous drugs, controlled substances or alcohol and there are reasonable grounds to believe that the condition will continue for a prolonged indeterminate period.
4. That the parent is deprived of civil liberties due to the conviction of a felony if the felony of which such parent was convicted is of such nature as to prove the unfitness of such parent to have future custody and control of the child, including murder of another child of the parent, manslaughter of another child of the parent or aiding or abetting or attempting, conspiring or soliciting to commit murder or manslaughter of another child of the parent, or if the sentence of such parent is of such length that the child will be deprived of a normal home for a period of years.
5. That the potential father failed to file a paternity action within thirty days of completion of service of notice prescribed in section 8-106, subsection G.
6. That the parents have relinquished their rights to a child to an agency or have consented to the adoption.
7. That the child is being cared for in an out-of-home placement under the supervision of the juvenile court, the division or a licensed child welfare agency, that the agency responsible for the care of the child has made a diligent effort to provide appropriate reunification services and that either of the following circumstances exists:

(a) The child has been in an out-of-home placement for a cumulative total period of nine months or longer pursuant to court order and the parent has substantially neglected or wilfully refused to remedy the circumstances which cause the child to be in an out-of- home placement.
(b) The child has been in an out-of-home placement for a cumulative total period of fifteen months or longer pursuant to court order, the parent has been unable to remedy the circumstances which cause the child to be in an out-of-home placement and there is a substantial likelihood that the parent will not be capable of exercising proper and effective parental care and control in the near future.

8. That the identity of the parent is unknown and continues to be unknown following three months of diligent efforts to identify and locate the parent.
9. That the parent has had parental rights to another child terminated within the preceding two years for the same cause and is currently unable to discharge parental responsibilities due to the same cause.
10. That all of the following are true:

(a) The child was cared for in an out-of-home placement pursuant to court order.
(b) The agency responsible for the care of the child made diligent efforts to provide appropriate reunification services.
(c) The child, pursuant to court order, was returned to the legal custody of the parent from whom the child had been removed.
(d) Within eighteen months after the child was returned, pursuant to court order, the child was removed from that parent's legal custody, is being cared for in an out-of- home placement under the supervision of the juvenile court, the division or a licensed child welfare agency and the parent is currently unable to discharge parental responsibilities.

10. The grounds for permanent guardianship are set out in ARS § 8-871 as follows:

1. The child has been adjudicated a dependent child.
2. The child has been in the custody of the prospective permanent guardian for at least nine months as a dependent child. The court may waive this requirement for good cause.
3. If the child is in the custody of the division or agency, the division or agency has made reasonable efforts to reunite the parent and child and further efforts would be unproductive. The court may waive this requirement if it finds that reunification efforts are not required by law or if reunification of the parent and child is not in the child's best interests because the parent is unwilling or unable to properly care for the child.
4. The likelihood that the child would be adopted is remote or termination of parental rights would not be in the child's best interests.

11. 45 C.F.R. § 1356.21(d)
12. ARS § 8-862(B)
13. ARS § 8-862(C)