OAR 413-120-0635: Cooperative Adoption Planning Through Legal Assistance Mediation Services

(1) Department will provide information on an ongoing basis to parent and adoptive resource, Department staff, and other interested persons in the child’s life: Information regarding the value and benefits of cooperative adoption planning; the use of mediation as a tool to achieve a cooperative adoption; and, the roles of all mediation participants in the cooperative adoption process. This concurrent planning education will take place early and often throughout the case. (See Flow Chart Box 1 & 2) (2) The parents, identified adoptive resource, CASA, child, attorneys of record, Citizen Review Boards and other persons interested in the child’s need for permanency, safety and well-being may request that the case be referred for cooperative adoption mediation services. (See Flow Chart Box 3.) (3) The Department will obtain input from interested persons, prior to or during the cooperative adoption planning process, regarding the appropriateness of cooperative adoption planning to address the child’s permanency, safety and well-being. (See Flow Chart Box 4.) (4) On an ongoing basis, Department staff will explore the willingness of the birth and adoptive resource to engage in the cooperative adoption planning process through mediation. (See Flow Chart Box 5.) (5) A Mediation Referral Form must not be submitted until the selection of the adoptive resource, and until the case has been staffed and approved for mediation by a LAS. See OAR 413-120-0010 to 413-120-0060. (6) To support the development of a cooperative adoption planning process through mediation, the Department has the following responsibilities: (a) After a Legal Assistance Referral has been approved, the caseworker must consult with the LAS and the assigned legal assistance attorney. Consultation must address whether the parent present a continuing safety threat to their child or adoptive resource, and whether a plan for openness in adoption will meet the needs of the child; (b) If parents want to plan cooperatively and there is no approval for a legal assistance referral an exception can be made to allow for a referral for mediation using the criteria provided in OAR 413-120-0628. (c) The child’s caseworker must obtain from the parent and from the adoptive parents, if no adoption worker is assigned, a signed Authorization for Disclosure, Sharing, and Use of Individual Information (MSC 3010) to the mediator; (d) To request mediation services funded through the Legal Assistance program, the child’s caseworker, or in some cases, the adoptive resource's worker must make referrals for cooperative adoption mediation on the CF 0437 Mediation Referral Form. The child’s caseworker, in consultation with the adoptive parents worker, if assigned, must list on the Mediation Referral Form, benefits specific to the individual case and safety concerns that, if an agreement is reached, must be met in a written PACA. The form should be prepared with the understanding that the parent and adoptive resource will be receiving a copy of the form. (e) The child’s caseworker, and in some cases, the adoptive resource's worker, must provide to the mediator, on the CF 437b Contact Information Form, information of the mediation participants, and other collateral resources when applicable. (7) In order to allow for informed decision-making by the adoptive resource in the cooperative adoption mediation process, the adoption worker must: (a) Provide the adoptive resource with the case materials itemized on the Form CF 963; (b) Review with the adoptive resource the statement of benefits to the child for cooperative adoption planning listed on the Cooperative Adoption Mediation Referral Form CF 0437; (c) Obtain from the adoptive resource a signed Authorization of Disclosure, Sharing, and Use of Individual Information Form MSC 3010 authorizing release of information to the mediator; (d) Be responsible to contact the mediator if the adoption worker is assigned after the cooperative adoption mediation process has already begun. (8) The Cooperative Adoption Mediation Referral form must be forwarded to the central office LAS assigned to the local Department office for approval of funds disbursement. If funds are approved, Central office staff must notify the mediator that funds have been approved and that the mediation service may begin. (See Flow Chart Box 6.) (9) A child welfare mediator contracted to provide cooperative adoption mediation must have the following responsibilities: (a) The mediator must keep confidential all mediation communications. (ORS 36.220-25.238); (b) The mediator must accept referrals from the Department on the Cooperative Mediation Referral Form CF 0437; (c) Within two weeks of receiving the CF 0437, the mediator must contact the child’s worker and the adoption worker of the selected adoptive resource for additional information on the case and further discussion of the Department’s safety concerns, if needed (See Flow Chart Box 7.); (d) After contacting the child’s worker and the adoption worker, but within the two week of receiving the CF 0437, the mediator must contact the parent and adoptive resource to begin mediation services, (e) The beginning of the mediation process, the mediator must inform the mediation participants about the mediation process, explain their role and responsibilities during the process, provide them with a copy of ORS 109.305, review the mediation referral form with the mediation participants and provide them with a copy, and if the mediation participants choose to continue in mediation, obtain their signature on the Agreement to Mediate Form (See Flow Chart 8a.); (f) The mediator must make collateral contact with professionals involved in the case including, but not limited to, children’s attorney, CASA, and parent and adoptive resource attorneys. If requested, the mediator must also keep informed, the Assistant Attorney General or Deputy District Attorney assigned to the case; (g) If the mediation participants reach agreement and the mediation participants desire it, the mediator must draft a PACA. The PACA must address the mediation participant’s issues and the documented safety concerns as set forth in the Mediation Referral Form (See Flow Chart 9.); (h) The mediator must provide the draft PACA to the mediation participants and must encourage the mediation participants to review the draft with legal counsel; (i) Once the mediation participants have approved the draft, the mediator must provide the child’s worker with the proposed PACA for the review and concurrence that it meets the safety needs of the child. (10) The Department has the following additional responsibilities: (a) The child’s caseworker must review the draft PACA solely for the purpose of assessing whether it will meet the safety needs of the child, as set forth in the Mediation Referral Form (See Flow Chart Box 9.); (b) If the child’s caseworker concludes that the PACA meets the safety needs of the child, the child’s caseworker or other agency representative must sign the final PACA. (Flow Chart Box 11(b).) (c) If the child’s caseworker concludes that the PACA may not meet the safety needs of the child, the child’s caseworker must notify the LAS. The LAS must inform the mediation participants in the form of written communication sent to the mediator (“LAS Notice”). The LAS Notice must state the continued safety concerns for the child. (See Flow Chart Box 11(a).) (11) A contracted mediator has the following additional responsibilities: (a) If the mediator is informed through a LAS Notice (see Flow Chart, Box 11) that the PACA does not meet the safety needs of the child, the mediator must set another mediation session with the mediation participants, and an agency representative, if requested by the mediation participants. The mediator may consult with the child’s caseworker for clarification about the LAS Notice before setting the additional mediation session. (b) If the additional mediation session results in a revised draft PACA, the mediator will repeat the processes outlined in (9)(g) through 10(c) in this rule. (c) After the Department determines that the revised draft PACA meets the safety needs of the child, the mediator must arrange for the mediation participants and an agency representative to sign the agreement (See Flow Chart 11(b)); (d) If no agreement can be reached, the mediator must send a letter summarizing the situation to Central Office with the final invoice. [ED. NOTE: Forms and Flow Charts referenced are available from the agency.]