Transcript Challenges Facing the Juvenile Court Dependency Process

Challenges For the Future
of Legal Advocacy for
Children and Families
Howard Davidson
Director, ABA Center on Children and the Law
American Bar Association
202/662-1740 [email protected]
See also, “Children’s Rights and American Law,” 20(1)
Emory Law Review 69 (Spring 2006); “Child Protection
Policy and Practice at Century’s End,” 33(3) Family Law
Quarterly 765 (Fall 1999)
1975 Guidelines for Legislation on
Reporting Child Abuse and Neglect
(supported by U.S. Children’s Bureau)–
year after CAPTA
 For reporting: “Serious physical harm,”
or “serious impairment” due to neglect,
or “potential harm” required
 “Mandatory” reporters only required to
report suspected abuse, not neglect
 Emergency removals by CPS or police
only when child in imminent danger of
loss of life
• Reports to be investigated by a
“specialized” CPS, or by the police
• Maintain CPS report information in a
“central register” (but for how long?)
• Very strict limits on access to CPS
reports/records (only accessible to
CPS, court, researchers, and subject
of report)– But what about access by
physicians/other service agencies?
IJA/ABA Standards Relating to
Abuse & Neglect (1977-78)
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Would limit mandatory reporting to
severe “abuse” (child suffered
physical harm with substantial risk of
death, disfigurement, impairment of
bodily function, or other serious
physical injury)
Would limit emergency removal to
where probable cause to believe
child in danger of imminent death or
serious bodily injury
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“Endangered Child” court jurisdiction
would be limited to: actual or
imminently threatened serious
physical injury cases; emotional
damage (with evidence of severe
anxiety, depression, withdrawal, or
aggression to self or others) where
parents not willing to provide
treatment; sexual abuse in home;
medical neglect (if death,
disfigurement, or substantial
impairment of bodily functions
threatened) and parents unwilling to
consent or provide treatment; parental
encouragement of delinquent acts
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Any person would be able to file a
child protection petition (like Mr. Gerry
did in 1874)
Child would have to attend hearings
unless court found, upon a motion,
that “attendance would be detrimental
to the child”
Child could only give evidence if court
found testifying would not be
detrimental to child
Parents would have a right to trial by
jury
Petition would have to be proven by
clear and convincing evidence
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Limitations on removal-- Court would
not be able to remove child from home
unless, by preponderance of evidence,
found necessary to protect child from
further physical abuse, or by clear and
convincing evidence that child couldn’t
be protected from other types of
serious harm; Child would not be
removed solely due to “environmental
conditions” beyond control of parents
that they could remedy if able; Court
would also have to find, before
removal, a placement was available in
which child “would not be endangered”
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If child not removed from
home, court’s jurisdiction
would terminate automatically
18 months after adjudication,
unless upon a motion the court
found, after a hearing, clear
and convincing evidence that
child was still endangered or
would be endangered if
services were withdrawn
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No child would be permitted to
remain in “voluntary” foster care
placement over 6 months (&
even then only if under age 12)
without that child being made a
“ward of the court” and a court
finding that the child’s continued
placement was necessary
No TPR could be ordered if:
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There was a close parent-child
relationship, making it detrimental for
child to TPR
Child was with relative who won’t
adopt
Child’s problems required placement in
a residential treatment facility and
continued parental rights would not
prevent a later permanent family
placement when needed
Child couldn’t be placed in a family
environment
Child over 10 objected to TPR
What Child Welfare Court Intervention
Looks Like
1976
TODAY …in addition:
Maybe emergency Pretrial hearings/mediation/FGCs
hearing
Reviewing & making 4 types of
Initial hearing (incl.
findings on agency “reasonable
appt. of counsel)
efforts,” plus “staying home is
Adjudication hearing contrary to welfare”
determination if need for
Disposition hearing
placement
Maybe 1 or more
review hearings Permanency hearing
Guardianship/custody hearings
TPR hearing
Post-TPR
review/permanency/adoption
hearings
Pre-transition from care hearings
Participants in the Process
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1976
TODAY – in addition…
Caseworker
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Noncustodial or
Custodial parent(s) putative parent
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Foster
parents/Relatives
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Separate attorney for
each parent
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Child's attorney or GAL
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Agency attorney
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CASA volunteer
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Child
Issues Typically Resolved
TODAY– those plus…
1976
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Need for emergency placement of child
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Validity of
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Sufficiency of agency efforts to prevent
allegations
placement
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Who will
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Necessity of emergency relief other than
have custody
placement (e.g., removal of perpetrator from
of child, if
home)
allegations
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Validity of allegations
are proven
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Custody, if allegations proven
TYPICALLY NO  Visitation / Sibling contact
TIME
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Sufficiency/review of agency’s Case Plan
LIMITS SET  Sufficiency of efforts to implement Case Plan
FOR WHEN
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Sufficiency of agency efforts to reunify family
HEARINGS
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Whether efforts to reunify family are required
MUST BE
HELD &
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Child's long-term legal status (permanency
COURT
hearing)
ACTION
of parental rights or legal
COMPLETED  Termination
guardianship
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Sufficiency of efforts to place child for adoption
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Adoption
TIME LIMITS FOR MANY OF THESE DECISIONS
COURT DUTIES THAT ATTORNEYS
MUST MONITOR
• Evaluating reasonableness of services to
prevent separation of families
• Evaluating reasonableness of services to
reunite families
• Making decisions whether services to
preserve or reunite families are required
• Evaluating reasonableness of services to
achieve permanency for children unable to go
home, including possible interstate placements
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Holding periodic care review hearings
Holding timely permanency hearings
for foster children
Holding timely TPR proceedings
Holding timely hearings on
guardianship of children in foster care
and holding timely adoption completion
proceedings
Providing procedural safeguards
concerning placement and visitation
Providing notice of all hearings to
foster parents, pre-adoptive parents,
kinship care providers & giving them
right to participate
Children’s Dependency Attorneys’
Caseloads
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17.6% of our 210 respondents had
caseloads of 200 and over. Almost a
quarter had caseloads of100-199
Among 76 respondents indicating
they spent 100% of time
representing children in dependency
cases, 71.1% were handling 100 or
more cases and one-fifth had
caseloads in range of 300-499!
Children’s Dependency Attorneys’
Compensation
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Attorneys, in the 31 jurisdictions
we surveyed, told us their hourly
rate was commonly between
$30-60 per hour
Per-case compensation “caps”
were as low as $250-500 with
sometimes up to another $500
available for post-adjudication
and initial disposition case work
Evaluations Showing Impact Of
Having a Lawyer for Child
?
Today’s Challenges for Lawyers
Respecting Parental Rights &
Strengths
 Enhance parents’ participation in
agency case
involvement/plans/services
 Improve quality of court-appointed
legal representation of parents (use
new ABA Standards of Practice)
 Clarify for parents (and children) their
legal rights in the context of
government child protective
investigations and record-keeping
 Protect privacy in an “open court” era
Enhancing Legal Representation
Generally
 Get court rules or binding guidelines to
dictate Standards of Practice
 Aid legally unserved kids (crime victims;
ex-foster youth; status offenders)
 Pass laws clarifying and strengthening
role of child’s lawyer (see, NCCUSL
Uniform Representation of Children in
Abuse, Neglect, and Custody
Proceedings Act)
www.law.upenn.edu/bll/ulc/rarccda/2006_finalact.pdf
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Evaluate quality/scope of child, parent,
& agency legal representation
What Are States Doing to Enhance
Representation?
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More than 20, since 2000 have either
promulgated, developed, or are
drafting child attorney statewide
performance standards or practice
guidelines
Increasingly moving to specially
contracted attorney representation,
often tied to evaluations and
monitoring of performance
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Conducting statewide assessments of
the quality and impact of attorney
representation
Supporting pilot legal representation
programs
Creating statewide support
programs/offices to enhance quality
of representation of children and
parents
Some have increased state funding
for attorney representation of
abused/neglected children and
parents
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Other novel reforms in attorney
representation include:
New lawyer mentor programs
Programs in schools, hospitals, etc.
Model projects where appointed lawyers
and CASA collaborate effectively and
actively
Tiered representation system, where
attorneys are always assigned to cases
of greater complexity when becoming
experienced
Certification specialization availability
(NACC)
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Maintaining “Substantial, Ongoing,
and Meaningful” Relationships
Between Child Welfare Agencies
and Juvenile Courts
Help make court actions more timely,
and better ensure safety, permanence,
and well-being of children in foster
care cases, through improved data
collection and agency-court
coordination
Better train judges, attorneys, and
other legal personnel in child welfare
proceedings, including cross-training
with child welfare agency staff and
contractors
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Addressing Important & Too Often
Overlooked Areas of Importance
Better pre-removal & post-reunification
services for parents/caretakers
Support of relative caretaker needs
Help youth well-being (“benchmark” and
discharge hearings & post-18 court
hearings)
Effective post-permanency services
Use SIJS law for immigrant kids in care
Enhance housing, substance abuse, and
mental health treatment for families
Crucial Future Reforms
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Effective child protective
intervention prevents future
crime, mental illness, substance
abuse, & other societal costs!
Make enhancement/greater funding of
the child welfare system, including
preventative services, a political issue
Target new support for “evidencebased” programs
Clarify statutory basis for child
protective intervention (re-draft
abuse/neglect laws)
Support a New Professionalism in
a More Effective Child Protection
System
 With judges & attorneys who want to
work within that system, and remain
in it
 Enhancing law school multidisciplinary
education/clinical programs that
include schools of medicine, social
work, psychology, etc.
 Strengthening state and local bar
association involvement in child
protection system reform
What Child Advocacy Law Field
Needs the Most
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Common policy vision
More unified, collaborative agenda
Program sustainability
Larger constituencies
Stronger voices in legislative process
More visible and vocal champions in
government (elected & civil servants)
Emergence of a true “children’s
rights to protection” movement